Category: Parenting Time and Decision Making

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...

It is crucial to understand that family law Judges and courts will always put the child’s best interests above any other factor when rendering a decision. In the case of Children’s Aid Society of Oxford County v. C. (W.T.), a biological mother argued that due to the delay in the court-proceeding process, she never had a chance in her appeal to take her child back from the adoptive parents, and thus her section 7 Charter rights were breached. The case witnessed an institutional delay regarding the preparation of certain transcripts that allowed the adoptive parents to hold on to the child and create an uninterrupted four-year bond with no access awarded to the biological mother. During that time, the biological mother put her life together and claimed to be sufficiently capable of mothering her child. The Court recognized the progress she had made during the four-year period and acknowledged that she would now be deemed fit to raise her child. However, the Court did not rule in her favor. The Court of Appeal emphasized the bond the child had made with the adoptive parents during these four years, and declared that the child’s best interests were to be place above...

An important factor in determining who will maintain custody of the child is the status quo (or the existing custody arrangement). The court will look to the existing custody arrangement and if that seems to be working the court will likely be reluctant to make an order that will disturb the arrangement. In Moores v. Feldstein, the natural mother gave the child to the Feldsteins when the child was a few days old. A few months later, the natural mother wanted the child to be returned. The proceedings were not commenced until the child was two years old and the case did not come to trial until the child was four years old. The Trial Judge found that the natural mother did not abandon the child and that she was not an unfit parent. Therefore, the Trial Judge awarded custody of the child to the natural mother. The Court of Appeal reversed this decision as the Court of Appeal Judge felt that the child should not be uprooted from the happy nurturing home that she knew for the past four years. This Judge stated that there was a serious risk inherent in uprooting the child at that point from her happy surroundings.

When a judge makes an order, the order is mandatory for the parties involved. Judges' orders have to be followed by the parties to whom they are directed, regardless of one’s personal feelings and beliefs regarding the situation. The only option that one has, with regard to stopping the order, is to get the court order reversed. In order to get the court order reversed, you are required to seek either an appeal of the order, or to vary the order, within the prescribed timelines. Whether or not the court will accept the appeal, and therefore whether the order is varied, depends on whether or not you have, as seen by the court, a valid reason to want the order to be reversed. You ought to provide evidence in order to further prove the validity of your position. In the mean time, however, the parameters and requirements that are outlined by the court order must be followed. Not following the order would put both you and your children are in contempt of the order. Being in contempt of the order may actually, in the long run, work against you when you apply for the appeal. If there is a concern...

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...

When parties decide to terminate their relationship and begin to live separately, it may be the case that one of the parties wishes to relocate. A party may also wish to relocate at any other point in time. The concept of relocation is also referred to as mobility. If the couple had children, complexities arise as to whether the a parent wishing to relocate may relocate the children too. In the past, mobility and relocation was governed by Gordon v. Goertz, a Supreme Court of Canada decision. This is no longer the case. Effective March 1, 2021, there have been changes to the Divorce Act for married spouses and Ontario's Children's Law Reform Act for unmarried spouses that relating to relocation. These Acts outline the procedure and factors that are to be considered in making a decision on relocation and must be followed carefully in the case of relocation. For example, the legislation requires that a party who intends to relocate provide a notice of the proposed relocation in writing at least 60 days before the proposed move. The notice needs to be given to anyone who has parenting time, decision making, or contact. The legislation also requires that if there is an objection, the...

Decision making refers to the power to make major decisions regarding the upbringing of a child. These decisions include matters relating to the religion of the child as well as his or her education and medical treatment. This concept used to be referred to as "custody", but this term is on longer used. When a parent is granted sole custody, that parent has the exclusive right to make all major decisions on behalf of his or her minor child. Where the parents agree on joint custody, both parents must jointly agree on all major decisions relating to their child. Residency or parenting time refers to where the child will live. Day-to-day decisions are made by the parent in whose care the child is, according to the residential schedule. When the child has primary residency with one parent, the other (non-resident) parent usually has rights of parenting time. In an intact relationship, both parents have decision-making authority. After the parties' separation, if one parent moves out of the house with or without the child or if one parent allows the other parent to relocate with the child, the parent who remains with the child and who cares for the child daily has de facto decision-making responsibility.