Father and mother entitled to custody
20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. R.S.O. 1990, c. C.12, s. 20 (1).
Rights and responsibilities
(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child. R.S.O. 1990, c. C.12, s. 20 (2).
Authority to act
(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. R.S.O. 1990, c. C.12, s. 20 (3).
Where parents separate
(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. R.S.O. 1990, c. C.12, s. 20 (4).
Note: On a day to be named by proclamation of the Lieutenant Governor, section 20 is amended by section 77 by adding the following subsection:
Duty of separated parents
(4a) Where the parents of a child live separate and apart and the child is in the custody of one of them and the other is entitled to access under the terms of a separation agreement or order, each shall, in the best interests of the child, encourage and support the child’s continuing parent-child relationship with the other. R.S.O. 1990, c. C.12, s. 77.
See: R.S.O. 1990, c. C.12, ss. 77, 85.
Access
(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5).
Marriage of child
(6) The entitlement to custody of or access to a child terminates on the marriage of the child. R.S.O. 1990, c. C.12, s. 20 (6).
Entitlement subject to agreement or order
(7) Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement. R.S.O. 1990, c. C.12, s. 20 (7).
Application for custody or access
21. (1) 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.
Affidavit
(2) An application under subsection (1) for custody of or access to a child shall be accompanied by an affidavit, in the form prescribed for the purpose by the rules of court, of the person applying for custody or access, containing,
(a) the person’s proposed plan for the child’s care and upbringing;
(b) information respecting the person’s current or previous involvement in any family proceedings, including proceedings under Part III of the Child and Family Services Act (child protection), or in any criminal proceedings; and
(c) any other information known to the person that is relevant to the factors to be considered by the court under subsections 24 (2), (3) and (4) in determining the best interests of the child. 2009, c. 11, s. 6.
Police records checks, non-parents
21.1 (1) Every person who applies under section 21 for custody of a child and who is not a parent of the child shall file with the court the results of a recent police records check respecting the person in accordance with the rules of court. 2009, c. 11, s. 7.
Admissibility
(2) The results obtained by the court under subsection (1) and any information, statement or document derived from the information contained in the results are admissible in evidence in the application, if the court considers it to be relevant. 2009, c. 11, s. 7.
Use of evidence
(3) Subject to subsection 24 (3), evidence that is determined by the court to be admissible under subsection (2) shall be considered in determining the best interests of the child under section 24. 2009, c. 11, s. 7.
Regulations
(4) The Lieutenant Governor in Council may make regulations defining “police records check” for the purposes of subsection (1). 2009, c. 11, s. 7.
CAS records search, non-parents
Definition
21.2 (1) In this section,
“society” means an approved agency designated as a children’s aid society under the Child and Family Services Act. 2009, c. 11, s. 8.
Request for report
(2) Every person who applies under section 21 for custody of a child and who is not a parent of the child shall submit a request, in the form provided by the Ministry of the Attorney General, to every society or other body or person prescribed by the regulations, for a report as to,
(a) whether a society has records relating to the person applying for custody; and
(b) if there are records and the records indicate that one or more files relating to the person have been opened, the date on which each file was opened and, if the file was closed, the date on which the file was closed. 2009, c. 11, s. 8.
Request to be filed
(3) A copy of each request made under subsection (2) shall be filed with the court. 2009, c. 11, s. 8.
Report required
(4) Within 30 days of receiving a request under subsection (2), a society or other body or person shall provide the court in which the application was filed with a report, in the form provided by the Ministry of the Attorney General, containing the information required under that subsection, and shall provide a copy of the report to the requesting party. 2009, c. 11, s. 8.
Duty of clerk
(5) Subject to subsection (6), if the report indicates that there are records relating to the requesting party, the clerk of the court shall, 20 days after all of the reports that were requested by the party have been received by the court,
(a) give a copy of the report to every other party and to counsel, if any, representing the child; and
(b) file the report in the court file. 2009, c. 11, s. 8.
Exception
(6) The court may, on motion by the requesting party, order,
(a) that the time period referred to in subsection (5) be lengthened; or
(b) that all or part of the report be sealed in the court file and not disclosed if,
(i) the court determines that some or all of the information contained in the report is not relevant to the application, or
(ii) the party withdraws the application. 2009, c. 11, s. 8.
Admissibility
(7) A report that is filed under subsection (5) and any information, statement or document derived from the information contained in the report is admissible in evidence in the application, if the court considers it to be relevant. 2009, c. 11, s. 8.
Use of evidence
(8) Subject to subsection 24 (3), evidence that is determined by the court to be admissible under subsection
(7) shall be considered in determining the best interests of the child under section 24. 2009, c. 11, s. 8.
Interpretation
(9) Nothing done under this section constitutes publication of information or making information public for the purposes of subsection 45 (8) of the Child and Family Services Act or an order under clause 70 (1) (b). 2009, c. 11, s. 8.
Regulations
(10) The Lieutenant Governor in Council may make regulations for the purposes of subsection (2),
(a) specifying one or more societies or other bodies or persons to whom a request must be submitted;
(b) governing the manner and scope of the search required to be undertaken in response to a request;
(c) specifying classes of files that shall be excluded from the report. 2009, c. 11, s. 8.
Application by non-parent
21.3 (1) Where an application for custody of a child is made by a person who is not a parent of the child, the clerk of the court shall provide to the court and to the parties information in writing respecting any current or previous family proceedings involving the child or any person who is a party to the application and who is not a parent of the child. 2009, c. 11, s. 9.
Same
(2) Where an application for custody of a child is made by a person who is not a parent of the child, the court may require the clerk of the court to provide to the court and to the parties information in writing respecting any current or previous criminal proceedings involving any person who is a party to the application and who is not a parent of the child. 2009, c. 11, s. 9.
Same
(3) Written information provided under subsection (1) or (2) shall also be provided to counsel, if any, representing the child who is the subject of the application. 2009, c. 11, s. 9.
Admissibility
(4) Written information that is provided to the court under subsection (1) or (2) and any information, statement or document derived from that information is admissible in evidence in the application, if the court considers it to be relevant. 2009, c. 11, s. 9.
Use of evidence
(5) Subject to subsection 24 (3), evidence that is determined by the court to be admissible under subsection (4) shall be considered in determining the best interests of the child under section 24. 2009, c. 11, s. 9.
Interpretation
(6) Nothing done under this section constitutes publication of information or making information public for the purposes of subsection 45 (8) of the Child and Family Services Act or an order under clause 70 (1) (b). 2009, c. 11, s. 9.
Regulations
(7) The Attorney General may make regulations for the purposes of this section,
(a) defining “family proceeding” and “criminal proceeding”;
(b) prescribing the scope, content and form of the written information that shall or may be provided under this section;
(c) providing for a process for removing from the written information provided under subsection (1) or (2) information respecting a proceeding that does not involve the child who is the subject of the application or a person who is a party and is not a parent of the child, as the case may be. 2009, c. 11, s. 9.
Jurisdiction
22. (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,
(a) the child is habitually resident in Ontario at the commencement of the application for the order;
(b) although the child is not habitually resident in Ontario, the court is satisfied,
(i) that the child is physically present in Ontario at the commencement of the application for the order,
(ii) that substantial evidence concerning the best interests of the child is available in Ontario,
(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,
(v) that the child has a real and substantial connection with Ontario, and
(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. R.S.O. 1990, c. C.12, s. 22 (1).
Habitual residence
(2) A child is habitually resident in the place where he or she resided,
(a) with both parents;
(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or
(c) with a person other than a parent on a permanent basis for a significant period of time,
whichever last occurred. R.S.O. 1990, c. C.12, s. 22 (2).
Abduction
(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. R.S.O. 1990, c. C.12, s. 22 (3).
Serious harm to child
23. Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,
(a) the child is physically present in Ontario; and
(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,
(i) the child remains in the custody of the person legally entitled to custody of the child,
(ii) the child is returned to the custody of the person legally entitled to custody of the child, or
(iii) the child is removed from Ontario. R.S.O. 1990, c. C.12, s. 23.
Merits of application for custody or access
24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1).
Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).
Declining jurisdiction
25. A court having jurisdiction under this Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario. R.S.O. 1990, c. C.12, s. 25.
Delay
26. (1) Where an application under this Part in respect of custody of or access to a child has not been heard within six months after the commencement of the proceedings, the clerk of the court shall list the application for the court and give notice to the parties of the date and time when and the place where the court will fix a date for the hearing of the application. R.S.O. 1990, c. C.12, s. 26 (1); 2009, c. 11, s. 11 (1).
Exception
(1.1) Subsection (1) does not apply to an application under this Part that relates to the custody of or access to a child if the child is the subject of an application or order under Part III of the Child and Family Services Act, unless the application under this Part relates to,
(a) an order in respect of the child that was made under subsection 57.1 (1) of the Child and Family Services Act;
(b) an order referred to in subsection 57.1 (3) of the Child and Family Services Act that was made at the same time as an order under subsection 57.1 (1) of that Act; or
(c) an access order in respect of the child under section 58 of the Child and Family Services Act that was made at the same time as an order under subsection 57.1 (1) of that Act. 2006, c. 5, s. 51 (1).
Directions
(2) At a hearing of a matter listed by the clerk in accordance with subsection (1), the court by order may fix a date for the hearing of the application and may give such directions in respect of the proceedings and make such order in respect of the costs of the proceedings as the court considers appropriate. R.S.O. 1990, c. C.12, s. 26 (2); 2009, c. 11, s. 11 (2).
Early date
(3) Where the court fixes a date under subsection (2), the court shall fix the earliest date that, in the opinion of the court, is compatible with a just disposition of the application. R.S.O. 1990, c. C.12, s. 26 (3).
Effect of divorce proceedings
27. Where an action for divorce is commenced under the Divorce Act (Canada), any application under this Part in respect of custody of or access to a child that has not been determined is stayed except by leave of the court. R.S.O. 1990, c. C.12, s. 27.