Category: Parenting Time and Decision Making

Section 16.5 of the Divorce Act deals with “contact orders”. It came into force on March 1, 2021. This section empowers a court to make an order for a non-spouse to have contact with a child(ren), on application by that non-spouse. These non-spouses can include grandparents, aunts, uncles, etc. In most situations, the parent facilitates the relationship between the child and their grandparents, aunts, and other extended family. However, on separation, there may be a breakdown in the relationship between the parent and the non-spouse. The court process starts similar to proceedings in other family law cases, except that the non-parent needs the permission of the court to request a contact order (16.5(3) of the Divorce Act). This is to reduce unnecessary litigation given that “contact orders” could otherwise be widespread. The application for a contact order can be an original application or a variation of a past order. The outcome of a contact order is determined by the courts, if the parties cannot agree. An contact order can be made on a temporary or final basis. Courts consider all relevant factors when making a contact order. These factors can include: Whether contact between the non-spouse and child could happen in some other way;...

Custody and access are two diverse legal terms used in family law matters. Custody deals with decision-making that affects the child in question. Custody typically deals with decisions about the child’s education, religious instruction, and important medical issues. In contrast, access deals with how much time the child will spend with each parent and how that time will be structured. Access arrangements can vary dramatically depending on the circumstances of the case. For example, in some cases children live primarily with one parent and have regular visits with the other. In other cases children divide their time almost equally between the residences of both parents. Custody and access can be resolved through an agreement made between the two parties. In the event that the parties cannot come to an agreement on custody and access arrangements, then the matter may be brought before the courts for a determination on the issues of custody and access. The courts will generally make a decision based on what they then believe is in the best interest of the child, or children, in question. The courts may take the following factors into consideration: The ability of each parent to care for the child; The amount...

When children are involved in a separation and/or divorce in Ontario, custody, residency, and access to the child or children in question will need to be established for both parties. If parties cannot come to an agreement on their own on issues of custody and access, the issue can be brought before the courts. In Ontario, in accordance with the Children’s Law Reform Act and the Divorce Act, decisions made regarding custody and access must be made in the “best interest of the child." When establishing custody and access, the following factors may be taken into consideration by the courts: The ability of each parent to care for the child; The amount of stability each parent will provide for the child; The emotional ties between the child and each parent; The stability of the child’s current living arrangements; Each parent’s plan to care for the child in the future; The child's wishes (this will be given greater or lesser weight depending on the age and level of maturity of the child); Which of the parents is most likely to ensure contact between the opposing party and the child; and, Which parent is the most willing to care for the child. When...

Biological parents, adoptive parents, step-parents, grandparents, or other third parties may apply for an order for custody in Ontario or for access to a child in Ontario. Under the Divorce Act, a spouse or a former spouse may apply for custody in Ontario or for access to a child in Ontario. In addition, according to section 16(3) of the Divorce Act, another person may apply to the court for a custody in Ontario or for an access order with leave of the court. According to section 21(1) of the Children's Law Reform Act, a parent of a child or any other person may apply to the court to determine custody in Ontario or access in Ontario. Section 21(2) outlines that such an application must be accompanied by an affidavit containing: The person's proposed plan for the care and upbringing of the child; Information regarding the person's current and previous involvement in any family law proceedings relating to child protection or in any criminal proceedings; and, Any other information relevant to the best interests of the child, the person's past conduct, and whether the person has at any time committed violence against a specified category of people (being his or her spouse, a parent of a child related to the application,...

Mobility issues arise where one parent wants to take the child or children and move away from the other parent. The leading case on mobility where one party wants a change to child custody and access arrangements is Gordon v. Goertz. In this case, the Supreme Court of Canada summarized the applicable test as follows: The parent applying for a change in the custody or access order must meet the threshold requirement of illustrating a material change in the circumstances affecting the child. If the threshold is met, the judge on the application conducts a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the parents to satisfy those needs. This inquiry is based on the findings of the judge who made the previous order and based on evidence of the new circumstances. The inquiry does not start with a legal presumption in favour of the parent who has custody of the child, although the custodial parent's views are entitled to great respect. Each case is dependent on its own unique circumstances. The focus is on the best interests of the child,...

Family Law Issue V. (B.) v. V. (P.) is noteworthy because of the Ontario Court of Appeal's remarks on what constitutes an appropriate access schedule in family law. Lower Court Decision In this case, the Trial Judge determined that the mother was the primary caregiver for the child during the marriage, that the child had specific educational and social needs, and that the father had been controlling toward the mother. The Trial Judge determined that the father should have access to the child on alternating weekends (being from Friday after school to Monday morning), one overnight per week, and three weeks in the summer. Conclusion & Analysis of Court of Appeal The Court of Appeal held that the above-noted access schedule, as ordered by the Trial Judge, was minimal and failed to address the "maximum contact principle" outlined in section 16(10) of the Divorce Act. The Court determined that the father ought to have access to the child 35% of the time. This case emphasizes the courts' tendency to award generous access to non-resident parents.

Usually, one or both of the parents partaking in a legal divorce are granted custodial rights over the child, or children involved in the matter. However, there are situations whereby a third party, whether it is grandparents, extended family, or close friends, are able to obtain custodial rights of the children. According to the provisions outlined in the Children’s Law Reform Act, a non-parent may apply for the custodial rights over a child, or children, only if they possess specific qualifications. There are specific requirements and documentation that is requested from the a non-parents of a children, or children, requesting custodial rights under the Children’s Law Reform Act. These requirements include, but are not limited to: The results of a recent police records check; and, Reports from any Children’s Aid Societies. For more information on third party applications for custodial rights, contact Krol & Krol at 905.707.3370.

Most of the time, divorce is difficult on the children of the marriage. It is often hard to come to terms with, as well as to move forward from the shock that a child or children experience when the marriage of their parents breaks down and comes to an end. At times, children of the marriage will harbour resentment towards one or both of the parents. This could therefore result in a child not co-operating when it comes to access visits with their non-custodial parent. In the event that the children of the marriage do not show up to access meetings and the custodial parent is alienating the non-custodial parent, it is possible that the custodial parent may be charged with contempt. This means that the parent who holds custody over the child, or children, could be considered to not be complying with the court order and will be held accountable. When there is no evidence to the contrary, it is generally assumed that it is in the best interest of the child or children to have maximum contact with both parents. Therefore, and assuming there is no danger to the child or children, it is important to demonstrate that...

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 Ontario, family courts have and do sanction the behavior of a spouse if he/she has not complied with a court order. In McAllister v. McAllister, Justice Campbell of the Ontario Superior Court of Justice reversed an earlier ruling that granted the wife permission to relocate with her son and live with her new boyfriend. Despite being awarded access rights to his child, the father was blocked and deprived from seeing his son, as the mother had relocated and made every attempt to sever the relationship between her child and his father. In his ruling, Justice Campbell, scolded the mother for disobeying the lower court’s ruling, which explicitly expected that the father of the child would have the opportunity to visit and continue building the relationship with his son. Justice Campbell ruled that he was of the opinion that the mother was “gatekeeping” and alienating her former husband from performing his right of access to his child. Consequently, Justice Campbell reversed the lower court’s ruling, forcing the mother to opt for one of two choices: Maintain custody of the child, but return home to ensure that the father’s access rights are upheld; or, Do not return home, lose custody of...