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Custody and Access

What does the court consider in determining who will get custody of the children?

In determining the issue of custody, the court is only interested in the “best interests of the child(ren)”. In order to determine the best interests of the children, the court may consider the status quo, the children’s ages, which parent has been the primary care giver, the children’s ages, the children’s wishes, and any other relevant factor that affects the best interests of the children.

What is the difference between joint custody and shared custody?

Shared custody involves a situation where the time spent with the child(ren) is shared equally between the parties on a week-about basis or some other equal time schedule. The parents will then necessarily have to agree on the major life decisions affecting the child(ren). The parent with the child(ren) will make the day-to-day decisions affecting the child(ren) when the child(ren) are in his or her care.

Joint custody relates to decision making authority for the child(ren). If the parties have joint custody, then they must agree on the major life decisions affecting the children (ie. schooling decisions, health care decisions, decisions regarding religious upbringing and, in some cases, which extra-curricular activities the children partake in). The child(ren) will reside primarily with one party and the other party will have access or visitation rights to the child(ren).

Courts are often hesitant to make a joint custody order unless the parties have demonstrated an ability to co-operate with one another.

What is split custody?

Split custody is where one or more child(ren) are in the custody of one party and one or more of the remaining child(ren) are in the custody of the other party. For example, a two-child family where the father has custody of one child and the mother has custody of the other. The court will generally believe that it is not in the children’s best interests for them to be separated. Accordingly, a split custody arrangement is rarely found and is often limited to situations where there is a large age gap between the children.

What type of access can the “access parent” expect?

The court will generally attempt to share the child(ren)’s free time amongst the parties. As such, the usual access schedule would be alternate weekends plus one or two evenings during the week. School vacations, statutory holidays, religious holidays and summer vacation would be divided between the parties in some fair manner. The parties are free to create their own access schedule and, in fact, the court prefers this.

Why would a court order supervised access?

A court will order supervised access if it has any concerns about the physical, emotional or psychological safety of the child(ren) while in the care of the non-custodial parent. The parties are free to choose a mutually agreeable supervisor. If the parties cannot agree on a supervisor, then the court can order one or it can order access to take place at a government run supervised access centre. If access takes place at an access centre, then trained staff take notes of all access visits. These notes can be filed with the court to demonstrate why supervised access should continue or why access should no longer have to be supervised.

Supervised access is meant to be a temporary measure. For example, it may be used to create a safe environment for access visits while the non-custodial parent overcomes a drug addiction. It is not meant to be a long-term or permanent solution to an access problem.

Will the court consider the wishes of the children in determining custody or access?

The answer to this question is that it depends upon the ages and maturity level of the child(ren) involved. Generally speaking, the court will not place much, if any, weight on the wishes of very young children (ie. less than 7 years). The wishes of children who are over 13 years of age will be seriously considered by the court. The court may give some consideration to the wishes of children between the age of 7 and 13. The ages set out in this answer are guidelines only. In fact, the court’s willingness to consider the wishes of any child will be based on the specific facts of each given case, keeping in mind that the court is looking to determine the best interests of the child(ren).

What is the Office of the Children’s Lawyer and how does it work?

The Office of the Children’s Lawyer (formerly the Official Guardian) investigates, advocates, protects and represents the personal and property rights and obligations of children under the age of 18, in proceedings before the courts and tribunals of Ontario. As it pertains to custody and access disputes, the court may order the involvement of the Office of the Children’s Lawyer (OCL) if it determines that there is a clinical issue that needs the attention of the OCL. If the court orders the involvement of the OCL, then the file is passed to the OCL for consideration. The OCL may accept or reject the case. If the OCL accepts the case, then it will determine if it will provide legal representation to the child(ren) or assign a social worker to investigate and report its findings to the court. In some situations, the OCL decides to appoint a lawyer and a social worker at the same time.

If a lawyer is appointed for the child(ren), then the OCL lawyer’s mandate is to interview the child(ren) and to communicate the child(ren)’s wishes to the court. If a social worker is appointed for the child(ren), then the social worker will typically interview both parties, the children, teachers, doctors, friends, children’s aid societies, police, and anyone else who may have information relevant to the issues at hand. Upon the completion of the investigation, the social worker will hold a meeting with the parties and their lawyers. The purpose of this meeting is for the social worker to disclose to the parties the content of the investigation, the findings and the recommendations that will be made to the court. In most cases, the parties are encouraged to use this meeting to try to negotiate a resolution. If a resolution is not achieved at this meeting, then the social worker will prepare a written report which will include recommendations. This report will be filed with the court and, while not binding on the court, is often very persuasive, especially at pre-trial hearings and motions.

If your case involves the Office of the Children’s Lawyer and you require the OCL Intake Package, then please refer to the Office of the Children’s Lawyer (Intake Package) link found under the “Links” section of this web site.

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