FAQ: Custody & Access

Find out the answers to frequently asked questions ("FAQs") with regard to family law and other legal issues.

What is the Office of the Children’s Lawyer (OCL)?

The Office of the Children’s Lawyer (OCL) is a division of the Ministry of the Attorney General of Ontario. The OCL represents children who are under age 18 in litigation involving custody, access, child protection, estates, trusts and civil litigation.

Under section 89 of the Courts of Justice Act, a lawyer from the OCL may be appointed to represent a child’s legal interests in a custody or access proceeding.

Pursuant to section 112 of the Courts of Justice Act, a clinical investigator, who is usually a social worker, may make an investigation as to the views and preferences of the child(ren) with respect to a custody or access proceeding.

Even if a Court requests their appointment, the OCL may decline to become involved based on their intake criteria. The OCL may not accept involvement in the following situations:

1. “The child resides outside of Ontario;

2. The child and/or either parent/party does not reside where the action is being conducted;

3. There is an outstanding or anticipated order for assessment or mediation, or an assessment or mediation is pending;

4. An assessment has been completed about custody and access in the year preceding the request;

5. A review of the case history indicates that there have been multiple assessments or protracted litigation with little possibility of resolution;

6. There are serious mental health concerns with respect to either parent and/or child, and a mental health assessment has not been undertaken or completed;

7. Support and/or property issues are the primary concerns and the custody and access arrangements have been relatively stable for an appreciable period of time;

8. The primary purpose is to obtain evidence to further the litigation;

9. Other resolution efforts should have occurred and have not been attempted;

10. The child’s situation would not be improved, e.g. where the issue is “joint” v. “sole” custody, or where an unrealistic time-sharing plan is being sought, or an applicant seeks to change custody to resolve an access problem, or both parties reside in the matrimonial home etc.;

11(a). One or both parties allege abuse and/or neglect and the local Children’s Aid Society (CAS) is investigating or should be asked under the Child and Family Services Act to investigate the allegations; or (b). The CAS is or has been involved and has taken a position as to the custody/access arrangements;

12. Updating the Children’s Lawyer’s Report that has been served and filed in court under section 112 of the Courts of Justice Act.” (source: https://www.attorneygeneral.jus.gov.on.ca/english/family/ocl/intake.php)

Should you wish to reach a family lawyer at Krol & Krol, telephone 905.707.3370 today.

At what age can a child decide with which parent s/he wishes to reside?

The age at which a child can decide with which parent they wish to reside is a grey area in the law.

In making an order for custody and access, the best interests of children are paramount. Section 16(8) of the Divorce Act outlines that “[i]n making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.”  Section 24(1) of the Children’s Law Reform Act states: “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).”

The best interests of children include:

24(2)

(b) the child’s views and preferences, if they can reasonably be ascertained;

Case law suggests that that children aging in range from 14 years of age (Di Liberatore v. Fabrizi, 2005 CarswellNS 576 (N.S. S.C.)) to 16 years of age (L(N) v M (RR) 2016 ONCA 915) may be permitted by a Court to decide where they want to reside.  Except in the context of extreme parental alienation, it would be rare for a child of over 16 years of age to have their wishes with respect to residency ignored by a judge.

If you have questions about custody and access, contact the experienced divorce lawyers at Krol & Krol for a consultation at 905.707.3370.

Grandparents & Access

Some of the hardest and most emotional cases in family law deal with grandparents & access. More specifically – the issue of whether grandparents should have access to their grandchildren. It is to be noted that in a general sense, grandparents usually do not have independent rights of contact or access, which are exercisable in favour of their grandchildren.

Very often, the result of this type of litigation dealing with grandparents & access leaves the grandparents involved unsuccessful.

The case of Nichols v. Herdman dealt with an application made by grandparents seeking access to their grandchild. As is commonly the case, there were external factors that affected the relationship between mother and grandmother, and that led to a grandchild being unable to build a relationship with her grandparents.

In Court, Justice Stevenson reiterated the notion that only the parents of the child have rights of access, unless the grandparents can satisfy a 3-step test. The test is set out below.

The response to the following questions must be answered in the affirmative:

(i) Does a positive grandparent-grandchild relationship already exist?

(ii) Has the parent’s decision imperilled the positive grandparent-grandchild relationship?

(iii) Has the parent acted arbitrarily?

To learn more about grandparent & access in Ontario family law as well as the services provided by Krol & Krol, call 905.707.3370 today.

Custody Reversal

The ultimate goal and principle that judges take into account when ruling on the issue of custody is the children’s best interests.

In a surprising and interesting case titled K. (L.D.) v. K. (M.A.), Justice Harvey used this crucial legal principle when ruling on a case that concerned itself with the issue of custody reversal.

The intriguing fact of the case was that the two children were ages 16 and 17.

In this case, a father had successfully alienated his two children from their mother, to the point where the children had not seen their mother for numerous years. Justice Harvey reviewed the evidence of alienation directed toward the mother, and agreed with the psychiatrist’s report with respect to how the matter should be dealt with.

Justice Harvey understood the implications of a custody reversal in this case, as evidenced by the fact that he stated that any ruling with regards to the 17 year old would have no effect upon the child turning the age of majority.

Ultimately, Justice Harvey ruled that both children should attend therapeutic reunification programs and that custody should be reversed from the father to the mother.

To learn more about custody reversal as well as the services provided by Krol & Krol, contact our lawyers at Krol & Krol at 905.707.3370.

Gatekeeping and Alienation – Breastfeeding

The case of Squires v. Smith brought forth an interesting issue with respect to the access of a new-born baby.

The case revolved around the issue of whether a father’s request to have overnight access to his new-born child interrupted the child’s breastfeeding patterns, and thus the request should be refused. In its ruling, it was clear that the Court was not suggesting that the mother had engaged in gatekeeping or alienation, however, the Court did rule in favor of the father.

In coming to a decision that awarded the father overnight access to his child, the Court also ordered the mother to provide pumped and stored breast milk to the father so as not to interrupt the child’s eating habits.

The Court also noted several cases that conveyed clear principles with respect to the issue at hand. The following cases were highlighted by Justice Douglas Cook in his ruling:

Preserving a breastfeeding schedule for newborn children up to at least one year of age will often be protected; See McDonald v. Deagnon, 2009 SKQB 154, [2009] S.J. No. 249.

Similar feeding and sleep patterns in each parent’s home ensure and promote stability: See Cooper v. Cooper, 2002 SKQB 151, [2002] S.J. No. 226.

The goal of an access plan should be to avoid long separations from both parents to minimize separation anxiety and to have sufficiently frequent and broad contact with each parent to keep the infant secure, trusting and comfortable in each relationship. See: Cooper v. Cooper.

Limited overnight access has been successfully argued for infants as young as 12 months old: See Baird v. Webb 2002 SKQB 518, [2002] S.J. No. 748.

To learn more about Gatekeeping and Alienation as well as the services provided by Krol & Krol, call 905.707.3370 today.

Relocating

When a couple decides to terminate the marriage and begin to live separate and apart from one another, it is often the case that one of the parties wishes to relocate and start fresh. If the couple had children, complexities arise as to whether the custodian parent wishing to relocate may bring the children with him/her. If the non-custodian parent objects to the relocation of his/her children, a motion will be brought before the court and the parties will submit their respective positions.

Upon hearing the motion, the issue that a Judge faces is whether to obtain evidence from the children themselves with respect to the potential relocation.

Justice Martinson, in G. (B.J.) v. G. (D.L.), 89 R.F.L. (6th) 103 (Y.T. S.C.), ruled that the Court must ascertain the wishes of the children if they were of an age and maturity where their wishes and preferences should be taken into account.

Interestingly, in the case of Kelly v. Harvey, Justice Forgeron neglected to obtain the views of the two children aged 10 and 14.

In that case, the mother planned to relocate from Nova Scotia to British Columbia with her two children, and the father opposed the relocation. The father had regular access but did not have a positive relationship with both children and was not receiving any overnight access with them.

Justice Forgeron ruled in favor of the mother and permitted the relocation.

To learn more about relocating with your children as well as the services provided by Krol & Krol, call 905.707.3370 today.

 

The status quo on issues involving the children

One of the first things client ought to be aware of is the fact that either the client or the opposing party may be creating a “status quo.” The reason why lawyers emphasize this point, is because many parties involved in a family law proceeding are unaware of the fact that, despite all the efforts they have made to prove their case and disengage from any unbecoming behavior, courts rule in favour of the best interests of the child. Once a party has created a status quo on issues involving the children – something the child has now become accustomed to – the court is often reluctant to take the child out of that environment.

In the recent case of White v. Noel, the power of the status quo was conveyed clearly in a somewhat controversial ruling by Justice Penny Jones of the Ontario Court of Justice.

The case involved a father with a cocaine addiction, and a neglected wife desperately wishing to return home to her parents in New Brunswick. The couple had a young child together, and were constantly in court fighting for custody and access.

Despite there being a consent order that contained a clause prohibiting the wife from removing the child from relocating with the child outside of Ontario, the mother unilaterally decided to take her child and move back to New Brunswick. There, she proceeded to move for a change in the consent order, when her husband served her with a contempt motion.

Due to the fact that the father was self-represented, he opted to wait for his day in court and not take any interim action. This resulted in an oral hearing scheduled 2 years after he served his wife with the contempt motion.

At the hearing, Justice Jones ruled that because the child had settled into New Brunswick and made a stable home there for the past two, accompanied by the fact that the mother had found stable employment for the past years, a status quo had been created and the court would not prejudice the child by moving the child back to Toronto at this stage in the game.

To learn more about the status quo in Ontario  as well as the services provided by Krol & Krol, call 905.707.3370 today.

Is there a presumption of shared parenting?

The case of Ackerman v. Ackerman brought to life some significant features of the Divorce Act and the concepts of custody and access.

The Court of Queen’s Bench to the Saskatchewan Court of Appeal dealt with a mother’s attempt to reverse the trial judge’s ruling of shared parenting between the parties, by conveying to the judge that the parties did not get along and were in a constant state of conflict.

The court acknowledged that the fact that both parties do not get along would factor in to its decision to reverse an order for shared parenting, but that it was not the sole factor when weighing in on a decision to disregard shared parenting. Thus, the court turned its attention to the status quo between the parties.

The status quo tipped the access scales in favor of the mother, but once again, the court stated clearly that evidence of a status quo was only one factor to account for when ruling on an award to set aside the shared parenting plan between the parties.

The father attempted to bring to make an argument based on Section 16 (10) of the Divorce Act which states:

“In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”

The father argued that the above-mentioned provision in the Divorce Act creates a presumption that courts should rule in favor of a shared parenting plan.

The court rejected the father’s attempt to create a presumption of shared parenting based on section 16 (10) of the Divorce Act. However, despite the judge stating that the status quo stood in favor of the mother, the court ruled that a shared parenting plan should stand and that a troubled relationship between two parties did not prevent the courts from ruling in favor of a shared parenting plan.

To learn more about shared parenting as well as the services provided by Krol & Krol, call 905.707.3370 today.

Can my spouse change the name of our child if I don’t have custody?

Spouses who have recently separated often look to change their name. The Change of Name Act outlines the steps and protocol if one were seeking to alter the name listed on his or her birth certificate.

Section 4(1) of the Change of Name Act depicts the prerequisites that one must satisfy before applying for a change of name are that he/she must be at least 16 years old and ordinarily resident for at least 1 year prior to the application.

Section 4 of the Change of Name Act deals with applicants over the age of 16, while section 5 of the Act deals with a parent’s wish to change the name of their child. Consent by each person with lawful custody of the child will be required prior to the change of name, and depending on whether the child has reached the age of 12, consent from the child may also be required.

Relevant to this matter is whether an access parent, who does not have custody of his child, can take measures to prohibit his (former) spouse from changing their child’s name. In the case of Zho v. Chen, the court ruled that a separation agreement preventing the custodial parent from changing the child’s name is not guaranteed to stand uncontested in a court of law; that is, a court has jurisdiction to look at the whole matter and rule contrary to what the separation agreement prescribes.

Similarly, there have been cases that prove the above-mentioned notion that a separation agreement preventing the custodial parent from changing the name of the child is enough to prohibit the name change from occurring. (Felix v. Fratpietro)

To learn more about custody as well as the services provided by Krol & Krol, call 905.707.3370 today.

Best Interests of the child

Judges will resolve custody and access disputes by keeping the best interests of the child ahead of all else. The test is given statutory credibility by means of the Divorce Act (s.16(8)) and the Children’s Law Reform Act (s.24). The Court will analyze the following factors when applying the test:

  1. The physical well-being of the child;
  2. The emotional well-being and security of the child;
  3. The plan in-motion for the child’s education and maintenance;
  4. The financial needs and requirements of the child;
  5. Religious and ethical upbringing;
  6. Whether the parent understand the needs of his/her child;
  7. As the child gets older, the child’s preference;
  8. The importance of keeping siblings together; and,
  9. The bond that has been created between the child and his caregiver.

The Court will also ensure that the “maximum contact principle” is being complied with to the highest degree.

The “maximum contact principle” essentially advocates that the child should have as much contact as possible with each parent if it benefits the child. Therefore, Judges will investigate into whether the either parent has fully complied with the principle or has placed various bulwarks that hinder the relationship of the child with the other parent.

The principle is codified in section 16(10) of the Divorce Act, and although there is no comparable section in the Children’s Law Reform Act, courts also apply this principle under the CLRA.

To learn more about the best interests of the child principle as well as the services provided by Krol & Krol, call 905.707.3370 today.