Child Custody: The Details
Child Custody in Ontario is often — and usually — best settled by a voluntary agreement between the parents. Only a small percentage of child custody disputes are decided in a courtroom. Custody is the right to make the important decisions about the care and upbringing of a child. Custody normally includes the physical care, control and upbringing of the child. If one parent has custody of the child, the other parent usually has access, a right to spend time with the child. Access also includes a right to receive information about the child’s health, education, and welfare.
A parent can have sole custody, where one parent has custody and the other has access, or there can be a joint custody arrangement. Parents with joint custody share the rights and responsibilities of custody and both have a right to make decisions about the child. Joint custody requires a lot of cooperation between parents and works best when parents agree on how to bring up the child. Courts are reluctant to order joint custody unless the judge believes that the parents will be able to work together.
If you are able to work things out together, you can put all your arrangements for your child(ren) in a parenting plan. This parenting plan can include everything about who will spend time with the child(ren) and when, and who will make major decisions about the child(ren). The parenting plan can either be an informal arrangement or can be detailed in a separation agreement.
When child custody cases actually reach the court, a judge will consider a variety of factors, depending upon the evidence that the parties present. The judge will likely ask for an assessment from a clinical investigator, social worker, psychologist or psychiatrist. One of these specialists will compile information from you and your spouse and will then offer a report to the judge which will outline who should live with the children and what the arrangement should be for the parent who does not live with the child(ren). This report will guide his or her decision-making. Child custody in Ontario is governed by the Child Law Reform Act. The statutes provide limited guidance as to how the system actually works, but may provide some useful information.
In recent years, Grandparents’ rights have become an issue in child custody disputes. While the Children’s Law Reform Act does not specifically discuss Grandparents’ rights, the section on child custody states:
21. A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. R.S.O. 1990, c. C.12, s. 21.
Of the many issues in family law, custody is perhaps the most emotionally charged. For this reason, it can also become the most expensive sort of litigation that might result from your separation. In most cases, however, couples are able to compromise on custody without forcing this issue into court. In Ontario you and your spouse may settle issues of custody and visitation by private agreement; custody does not have to be submitted to a judge. Until you both settle, or until a court issues a ruling on custody, remember that the general rule applies: each parent has an equal right and equal responsibility to raise their child.
If custody goes to court, you should keep several principles in mind. First, the focus on the “best interests of the child” in determining with whom your child will reside in essence forces the court to direct its attention principally to you and your spouse. The court, therefore, will carefully examine your conduct in the past and, based on your past history, the court will predict how you will behave in the future. The trial judge is given wide discretion in his or her determination. Appellate review is very limited in this kind of litigation, as the courts of appeal are unwilling to substitute their judgment of the facts for the trial judge who presided over the proceedings.
Second, your child may not necessarily participate in the proceeding, even though his or her welfare is the focus of the proceeding. This is because you, the judge and your lawyers may all agree that appearing in court might be unduly traumatic for your child; or, the child may be too young or fragile to understand what might be asked of him or her. A lawyer from the Office of the Childrens’ Lawyer may be brought in to represent the child.
Finally, because the status quo of the formerly intact family will not be sustained due to the dissolution of family ties, rules regarding the burden of proof and other rules of evidence may be relaxed in a custody trial. Thus, the process might even see the judge assuming a more inquisitorial role than usual.
In making an order on custody and access, the court will look at what is in the best interest of the child(ren). The conditions, means and needs of the children are all taken into account in making this order. The factors a court will consider are:
1. Love, affection and emotional ties between those people claiming custody as well as other members of the child’s family who reside with the child. The court will also look at other people who are involved in the child’s care.
2. Wishes of the child. The Childrens Law Reform Act provides that the views and preferences of a child are to be considered in a custody case if such views and preferences can be reasonably ascertained. The courts have ruled that the older the child is, the more weight the child’s testimony will have in terms of what is in their best interest. In cases where children are 14 to 16 years old, it is very rare for the court not to take their wishes seriously. The court can ask a lawyers from the Office of the Children’s Lawyer to step in and speak on the child’s behalf to express his or her wishes. It must be recalled, however, that the wishes of the child(ren) are only one factor to be considered.
3. Stability. The courts are inclined to want to maintain the status quo. The length of time the child has lived in a stable home environment will factor into the decision of whether to vary child custody. This is important where a temporary arrangement is in place. The longer a temporary custody arrangement (by agreement or court order) is in place, the more important it becomes in a court decision. For this reason, parents should act quickly if they want to change the existing custody arrangement.
4. Guidance, education and necessities of life. The court will take into consideration the ability and willingness of each person applying for custody to give the child guidance, education, and the necessaries of life. They will ensure that the custodial parent will be able to cater to any special needs of the child.
5. Parenting plan. Each parent will have to submit a parenting plan to the court. The judge will then examine that plan for the child’s care and upbringing and use it as a factor in considering the best interests of the child.
6. Ability to act as a parent. The courts also consider that it is most often beneficial for children to have a relationship with both parents, even after separation.
7. A parent’s right to custody. The right of a parent (by blood or through adoption) to have custody of his or her minor child is substantial and, while not absolute, in not interfered with unless the best interests of the child clearly demand it. Thus, as against other relatives and third parties, a child’s natural parent is entitled to the custody and care of the child in an initial proceeding for custody, absent a finding of unfitness. However, where the relationship between the child and a non-parent better promotes the child’s welfare than does the relationship between the biological parent and the child, a judge has some latitude to award custody to the non-parent. This will happen, however, in very few contests between a natural parent and a third party.
Most custody battles, of course, are not between one parent and some non-parent relative or third party. Most custody fights are between the child’s biological parents. As between the parents themselves, our statute also makes it clear that there is no presumption favoring either the mother or the father. The maternal preference, which was a presumption that the mother would be most capable of caring for a child during its earliest childhood years, has been abolished. This presumption was commonly known as the “tender years” doctrine. However, the mere abolition of the tender years doctrine does not mean that the mothers of young children are out of luck in custody fights. To the contrary, quite a number of Ontario judges are still strongly inclined to favor the mother while a child is very young, most especially when the mother has been the child’s primary caregiver all along.
A judge, not a jury, hears child custody matters. Because the trial judge has the opportunity to see the parties and witnesses firsthand, the judge may exercise broad discretion in making a custody determination. The lesson here is to know one’s judge prior to trial and to understand the judge’s predispositions, if any, regarding awards of custody.
The court has the power to award joint custody or to give sole custody to one party with access privileges to the other. In actual practice, however, Ontario judges very rarely award joint custody. The reason for this may well be a judicial unwillingness to believe that parents who are in court fighting over custody will be able to cooperate about everything regarding the child. Joint custody in the sense of equal time-sharing and equal decision-making ability would require the greatest amount of cooperation between parents. Thus, the most common custodial arrangement ordered by a judge will be sole custody to one parent with the child having access with the other parent. The willingness of each parent to work with the other parent and facilitate access is an important factor the court will consider in making a determination.
It is very rare for a non-custodial parent not to be allowed access to their child. If the judge is persuaded, however, that a child may come to some harm or danger if access is not monitored, the judge can order that visitation be supervised. Supervised visitation sometimes occur in the visiting parent’s home. The supervisor in such a location might be another relative, a family friend or even a social worker. Supervised visitation might occur in an even more protected setting such as the offices of a physician or mental health professional. If visitation begins as supervised visitation, the order may provide for a phase-out of supervision once the suspect parent has proven him- or herself to be more reliable or consistent around the child.
Although many clients think they can tie child support payments to access privileges, it is important that you understand that the one is legally independent of the other in terms of either unilaterally withholding support or suspending access. Thus, for example, if one party has not received the appropriate child support payment, he or she may not independently decide to bar the other from exercising any visitation rights. There is no supportable legal foundation for such a move. In addition, such retaliation can potentially impair your child’s welfare.
Even though the courts maintain jurisdiction over minor children at all times for purposes of custody and support, you and your spouse may nevertheless contract with respect to custody. This possibility for avoidance of court proceedings often allows for an amicable resolution of difficulties between separating parties and assists the child in adapting to his or her new way of life by sparing the child and the parties the trauma of litigation. A properly drafted separation agreement would also provide you and your spouse with the flexibility to effect your own modifications of the custody portions (or any other portions) of the agreement through further written amendment.
However, future modifications to a previously established written custody arrangement may not be so easy. That will depend on whether you and your spouse agree over the subsequent modification. If parents cannot agree in the future to a change that one parent or the child wants, the court would become involved if the dissatisfied parent started an application to vary the agreement. The court’s determination would be based, as always, on the child’s best interests.
The fact that there is a custody order does not end the matter forever. As already mentioned, an order awarding child custody may, subject to the court’s having proper subject matter jurisdiction, be modified or vacated at any time upon one party’s motion and a showing of changed circumstances by the interested party. “Changed circumstances” are changes affecting the child’s welfare both positively and adversely. The changes must, moreover, be substantial for the prior order to be modified.
The burden of proof in custody cases is by the greater weight of the evidence, as in most civil cases. The evidence, to support your claim for custody, must therefore show how your behavior and abilities will further your child’s overall development and welfare better than your spouse’s behavior and parenting abilities would do. In general, the parent with the best caretaking history or caretaking potential will be the parent preferred by the judge, provided that that parent and the child have a satisfactory relationship. But the judge will consider all the many common-sense factors enumerated here to determine which custodial placement is in the child’s best interests.
When embarking on a custody battle, you should also remember that it is never too late to become a good parent. Put more bluntly, if you can modify your less desirable behavior with respect to the child in positive ways or do additional things to make the grade, you should begin to implement those positive changes immediately. Recent, more extensive involvement with the child, for example, can help ameliorate a history of infrequent closeness.
Recent contact is also important with regard to the witnesses you have testify on your behalf. Witnesses should be chosen on the basis of not only their own involvement with you and your child and their possible expertise on your child’s needs, but also on the basis of the recency and frequency of their contacts with you and your child. You are much better off with witnesses who have seen you and your child a lot over the past year than with witnesses who have not seen you and the child together in the last three years or who have seen you and the child only very occasionally. You should consider a variety of people as possible witnesses: family members, social workers, daycare providers, psychologists or psychiatrists, teachers, extracurricular activity leaders, ministers, pediatricians, parents of playmates and neighbours to name just a few.
In close cases, it may be desirable to have a psychologist evaluate both parties and/or the child. If possible, it is best to have one professional do all of the evaluations to provide a uniform standard and level of continuity. This process is generally known as a “custody evaluation.” You and your spouse could agree to a custody evaluation if you both believed it would help you resolve the custody issue. If you cannot so agree, one of you may move the court to require the examination and to appoint its own psychologist to advise the court. Bear in mind, however, the potential expense associated with the decision to have a custody evaluation conducted. Plan to interview prospective custody evaluators carefully regarding their fee schedules, if you have some choice in the selection of the evaluator.