In a custody and access battle, parents often stuck in the “win or lose” mindset and lose sight of what is the best for their children. However, such mindset would not bring them the result they are seeking in the justice system. So, what should you bear in mind if you are involved in an access dispute?
1. You Cannot Keep The Child All To Yourself
One thing that parents often forget is that their child is not their property. It is unfair for the child to be used as a leverage for the parents to achieve what they want, whether it be the higher sum of spousal support, child support or other self-serving purposes. It creates a toxic and disruptive environment for the child or even cause permanent trauma for the child. At law, it is also inconsistent with the maximum contact principle.
2. Best Interests Of Child
In Canada, the court determines access on the basis of best interests of the child. As such, the child of marriage should have as much contact with each spouse. Under these principles, the court takes into consideration the following factors:
- the love, affection and emotional ties between the child and each parent, other family members, and persons involved in the child’s care and upbringing;
- the child’s views and preferences, if they can reasonably be ascertained;
- the length of time the child has lived in a stable home environment;
- 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;
- the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
- the permanence and stability of the family unit with which it is proposed that the child will live;
- the ability of each person applying for custody of or access to the child to act as a parent; and
- any familial relationship between the child and each person who is a party to the application.
3. Past Conduct
A person’s past conduct is only considered if the conduct is relevant to the person’s ability to act as a parent. Otherwise, the past conduct shall not be considered.
In assessing a person’s ability to act as a parent, the court will also consider if the person has committed violence or abuse against his or her spouse; a parent of the child to whom the application relates; a member of the person’s household or any child. However, anything done in self-defence or to protect another person shall not be considered violence or abuse.
4. Status Quo
Generally, the court will favor status quo be maintained as closely as possible, which means the interim order often favors the party who has de facto custody following separation. If one parent leaves home and leaves the child in care of the other parent, the leaving parent forfeits all the rights to custody until a separation agreement or court order provides otherwise.
If you need a Family Lawyer contact MEHDI AU LLP today, we have experienced divorce lawyers who can help you in your case.
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