What is Custody?
Custody has nothing to do with the time one shares with his or her child. Custody deals strictly with decision making power. The parent with custody of the child will have final say on all major decisions relating to the child.
Major Categories of Decisions
The main categories of major decisions are decisions which relate to the child’s:
- extra-curricular activities; and,
Thus, the custodial parent (the parent with custody of the child) will have the final decision making power relating to the aforementioned categories of decisions in the event of a disagreement.
Of note, family law statutes are in the process of revising polarizing terminology in family law. The term “custody” may soon be replaced with the term “parenting responsibility”.
Obligations of Custodial Parent
A custodial parent has a positive legal obligation to involve the non-custodial parent in the decision making process or at the very least, inform the non-custodial parent, prior to making the decision. Failing to do so is a breach of the basic parenting principles set out in the Children Law Reform Act.
Joint custody, which is becoming more and more common place, means that both parents have equal decision making power, or equal say with respect to major decisions relating to the child’s health, education, residence, extra-curricular activities and religion.
No major decision relating to these categories can be made unilaterally (without consultation, and consent of the other parent) by one of the parents.
Sole versus Joint Custody
Typically, whether a court makes a sole or joint custody order will depend on the parents’ historic decision making process, ie. the status quo.
Thus, if the parents had historically both been very involved in the child’s life, the presumption will be that they were jointly parenting, and the post separation custodial regime should reflect what was in place during their union.
If, on the other hand one of the parents was the sole decision maker, while the other parent’s involvement was absent, or limited, a sole custody order to the former parent is likely.
The single greatest challenge in custody cases is the determination of the truth. The parent seeking sole custody will allege that the other parent was an uninvolved or quasi absent parent, while the parent seeking joint custody will allege that he/she, was an actively involved parent. This is the classic he said she said scenario. Because neutral third party evidence is often difficult to obtain, such cases can become quite costly to litigate.
In such circumstances, courts will often order that a social worker or a lawyer from the Office of the Children’s Lawyer be appointed to perform an independent investigation in order to determine what is in the child’s best interest.
What are Access and Visitation Rights?
Access, or visitation rights relate strictly to the time a child spends with each parent. Access, or visitation rights have nothing to do with custody, as it does not relate to decision making power.
Changing Trend in Access Orders
Historically, fathers saw themselves being awarded alternate weekend access, plus a few hours, or an overnight visit, on his off week. This trend is becoming less and less popular.
Increasingly, courts are finding that it is in a child’s best interest to spend as much time with their father as they do with their mother, after the date of separation. That said, it will be difficult for a parent, who has historically had little involvement in the child’s life to seek an order for equal time sharing, or ‘shared custody’, also known as ‘shared parenting’.
Today’s reality for many families is that both mom and dad work outside of the home, have careers, bring the children to doctors appointments, to daycare, extra-curricular activities, and so on.
Both fathers and mothers change diapers, feed the children, make lunches, cook meals, and give physical and verbal affection.
Because the traditional roles in the Canadian family have changed, so have the standard court orders. Judges are increasingly, considering both parents as suitable custodial parents, which often results into joint custody orders, with equal time sharing, or shared custody.
That said, for children aged 0-5, many courts are finding it to be in a child’s best interest to primarily reside with their mothers. In such circumstances, short but frequent visits are often recommended.
In circumstances where a parent has no prior relationship with the child, or in cases of substance abuse, violence, or evidence that the child may be at risk, it may be appropriate to implement supervised access visits. The visits can be supervised at the ‘Supervised Access Centre’, or by a suitable third party. Such cases may require the involvement of the Office of the Children’s Lawyer.
In the most extreme circumstances involving severe substance abuse, physical abuse, emotional abuse, violence, or neglect, no access may be appropriate. Such circumstances may require the involvement of the Children’s Aid Society, and the Office of the Children’s Lawyer. Each and every case is determined on its unique set of facts.
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