CUSTODY:

The definition of Custody under S.2(1) Divorce Act 1985 “includes care, upbringing and any other incident of custody”. The wording of the act precludes the Courts from applying a narrow interpretation to the term. The Law Reform Commission of Canada report, upon which the Divorce Act is based, explains the term to include several legal meanings. The report states that the term “stands for the whole collection of legal powers (many of which connote parental obligations as much as “rights”) of fathers and mothers over their children: the power to raise and control the child, to determine the nature and amount of the child’s education, to determine his or her religious upbringing, to administer the child’s property, to grant or withhold consent to the marriage of an under-age child, to apply to the courts on his or her behalf, and so on. In its narrower sense, it means simply “care and upbringing” or, to use a more vivid but unfortunate phrase, ‘possession’.”

The Courts under S. 16(1) Divorce Act 1985 may on application, by one or both of the parents or custody lawyers on their behalf, make an order (known as the custody order) in relation to the custody of or the access to (or both) any or all children of the marriage. There are generally three forms of custodial arrangements which are commonly made by a custody agreement or custody order. These are sole custody, joint custody and shared custody. In making any decision the Court is obligated to ensure that the arrangement is in the ‘best interest of the children’. 

(can be made until the child or children turn 18 years of age Sharpe v Sharpe)

a – SOLE CUSTODY:

Sole custody is when one parent is granted full parental control and ultimate parental responsibility for the care, upbringing and education of the child, to the exclusion of any interference by the other parent. (Kruger v Kruger). Parental conduct of each parent may be considered, but only to the extent to which it can have a direct effect on the parent’s ability to guide and help a child (Baker v Baker). It is significant to note that under the ‘tender’ year’s doctrine, for children in their ‘tender’ years (generally the age of 4 and under) preference is given to the mother over the father.  The only relevant issue on custody and access matters is the best interest of the child (Gordon v Goertz)

b- JOINT CUSTODY:

Where sole custody is found not to be in the ‘best interest of the child’ a Joint custody arrangement, settlement or custody order may be made. Joint custody is where parental control and responsibility for the care, upbringing and education of the child is shared by both parents. Thus, one parent cannot carry out the decision making for the child with exclusivity. However, it is important to note that joint custody does not equate to equal access and pertains more to the sharing of decision-making powers of the parents rather than physical access and control of the child.  Although the Courts can without application make a joint custody order it is to be noted that it requires willingness by the one or both of the parents to do so, it is not something which can be imposed upon them if one parent declines the responsibility and must be in the ‘best interest of the child’ (Kruger v Kruger).

c- SHARED CUSTODY:

Shared custody is a custody arrangement where the child or children are required to spend at least 40% of their time with both parents. The time is calculated based upon the number of hours each parent is ‘responsible’ for the child rather than the time each parent is physically with the child. For instance, the time spent at school will be accredited to the parent who is responsible at that time for the child.

In order to determine the best and most functional custody arrangement, which also best reflects the ‘best interest of the child(ren)’ the use of services provided by custody lawyers is recommended.

If you need help with an ongoing Custody dispute, contact one of our experienced child custody lawyers today, we serve our clients across GTA and the province of Ontario on select cases.

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Use of the site and sending or receiving information through it does not establish a solicitor / client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.

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