Category: Parenting Time and Decision Making

(a) Information on adoptions There are four ways in which a child may be adopted in Ontario. They are as follows: 1) By a family member or step-parent. In making this determination on Application, a court will focus on the best interests of the child. 2) Through a Children’s Aid Society. For example, the Catholic Children’s Aid society and Jewish Family and Child Services. 3) Through a licensed individual or private adoption agency. 4) Through an Ontario licensed international adoption agency and Ontario licensees. For example, Kids Link International Adoption Agency, operating as Imagine Adoption, managed by Mission of Tears. For contact information of the various international adoption agencies, click here. (b) What happens to the child(ren) if there is a breakdown in the marriage? The process of adoption allows for individuals to take on the commitment of being able to care for a child. Through the adoption process, individuals are granted the legal right and responsibility to care for a child. An adopted child has the same rights throughout the divorce process as any biological child. Negotiations surrounding residency, access and custody are equally applicable to spouses’ biological and adopted children. Furthermore on the issue of child support, by committing...

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...

The term custody refers to the right to make decisions on behalf of a child. The areas include school enrolment, education programs, religion, and medical care. The term custody does not indicate where the child of the marriage resides, or with whom they spend more time with. As such, a child may spend equal amounts of time with each parent, however only one may have custody over the child. Additionally, a child may live with only one parent, however both may have custodial rights over the child. Temporary custody deals with who will be granted temporary custody over the children in question during the interim period (where the decisions regarding custody are still being negotiated and have yet to be determined by the court). Temporary custody is enforced until the couple either comes to a consensus on the custody of the children on their own, or when a judge makes a determination on the matter. Usually, the parent who is granted temporary custody is given an advantage when establishing final custody orders, as most judges do not like to disturb the living arrangements that the child has become used to during the period of separation. Sole custody means that one...

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 an argument based on section 16 (10) of the Divorce Act which states: “In making an order under this section,...

In order to move provinces with your child/children, you will usually need either: 1. Some form of court order or agreement that specifically outlines permission to leave the province you currently reside in. In the event that you are not in possession of such documentation, you should speak to your family lawyer in order to gain a further understanding of the appropriate steps that need to be taken before you are able to proceed with the move. 2. If you and your partner cannot agree to the terms of the move, the authority is placed in the hands of the court to come to a final solution regarding the issue. The judgment established by the court will determine whether or not you are authorized to move the children out of the province. In family law, this type of issue is referred to as a mobility issue. At the center of the court's analysis will be determining what is in the best interest of the child/children. For more information on matters concerning moving with your child/children, contact the experienced family lawyers at Krol & Krol at 905.707.3370.

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: he/she must be at least 16 years old and a resident for at least one 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 the non-custodial parent 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...

If there is a dispute about a child's custody and/or access, a court may appoint the Office of the Children's Lawyer (also known as the OCL) to give the court independent information as to the wishes of the child and additional information relating to the best interests of the child. In addition, after a court action about custody and/or access is initiated, the parties in the case may request that the Office of the Children's Lawyer be appointed. Pursuant to section 112 of the Courts of Justice Act, the Office of the Children's Lawyer may investigate, make a report, and suggest recommendations to the court. In most custody and/or access cases, children are not represented by the Office of the Children's Lawyer. The Office of the Children's Lawyer is most often involved in high conflict custody and/or access cases. For more information on the Office of the Children's Lawyer, contact Krol & Krol at 905.707.3370.

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: The physical well-being of the child; The emotional well-being and security of the child; The plan in-motion for the child’s education and maintenance; The financial needs and requirements of the child; Religious and ethical upbringing; Whether the parent understands the needs of his/her child; As the child gets older, the child’s preference; The importance of keeping siblings together; and, The bond that has been created between the child and his/her 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...

The breach of an order for custody or access (whether it is a final or a temporary order) constitutes contempt in custody and access cases. A contempt motion in custody and access cases may be brought under section 38(1) of the Children's Law Reform Act or Rule 31 of the Family Law Rules. These motion materials must be served on the Respondent personally. Contempt in custody and access cases is quasi-criminal and courts may fine the individual found in contempt or impose imprisonment on that party. The standard required in order to establish contempt is as follows: the Applicant must prove that there has been a breach of the order beyond a reasonable doubt and that the breach was wilful. It is difficult to meet this standard and to succeed on these types of motions. For example, it is difficult to prove that a denial of access was wilful, given that the person can state that the child was ill or that he or she mixed up the schedule. Therefore, a contempt motion in custody and access cases should be approached with caution. To learn more about contempt in custody and access cases, contact the family lawyers at Krol & Krol today at 905.707.3370.  

In the case of Hammond v. Nelson, Justice Chipman created a non-exhaustive list of what the court should review and analyze when one parent is seeking an order for shared parenting. In his analysis of the eight relevant considerations, Justice Chipman states: Nova Scotia Courts have determined shared custody arrangements require an even greater level of cooperation and communication between the parents than joint custody arrangements. Parents must not only foster and encourage meaningful, regular, and frequent contact between the children and the other parent, but they must also cooperate in providing similar routines and value systems in each household for the children. The eight considerations that a court should take into account when ruling on a shared parenting order are as follows: In different circumstances would the Court consider each of the parents to be an appropriate "primary parent?" Equal joint and shared custody essentially places both parties in that position. If a parent resides with a partner the Court must be satisfied that the partner is fully supportive of the parenting plan, that the child and the parent's partner have a good relationship, that the parent's partner is an appropriate secondary support to the parent and is a...