Whitby Child Custody Lawyers, Whitby Child Access Lawyers

Parents who want to separate from their partner are often unsure how this will affect their right to have custody of their children. The family law lawyers at M. G. Michaels & Associates are prepared to discuss your concerns and the specific details of your family life in order to determine the best course of action for you and to best meet your children’s needs based on their knowledge and experience with family law. We are here and ready to help.

Child Custody, Guardianship, and Parenting Time (Child Access) Explained

Child Custody and Guardianship

The term “custody” is outdated. “Decision-making responsibility” is the new term being used as it is a more direct way of explaining what the law meant by “custody”.

Decision-making responsibility describes which parent will make important decisions about a child, such as for healthcare, education, religion, extra-curricular activities, residency, and travel. Decision-making responsibility can be granted solely to one parent or jointly to both parents. In other cases, it can be divided between them so that, for example, one parent deals with education while the other parent deals with religion.

If a parent has sole decision-making responsibility, it means that the parent has the right to make those decisions for their children alone, whereas joint decision-making means that both parents have to reach a mutual agreement before any major changes can be effected.

Guardianship is another misused term and is completely separate and apart from decision-making or custody. Guardianship has to do with a child’s property.

For example, if a child receives a large sum of money (for instance, through an inheritance), then a parent or other adult must apply to the Court for the right to manage the child’s funds, with oversight by the Office of the Children’s Lawyer, a department of the Provincial Ministry of the Attorney General. If granted, this would make that person guardian of the child’s property. For example, in one file, our firm was able to convince the Children’s Lawyer that a 9-year-old who inherited a mortgage-free house could own the house, even at that age. Of course, the child did not have the right to live in that house alone, or obtain a mortgage or otherwise deal with it until he reached the age of majority, but the lawyers at M. G. Michaels & Associates have the skills and experience to negotiate beneficial settlements for a child in that type of situation.

Child Access and Parenting Time 

“Parenting Time” or “Contact” is the new term to be included in the Divorce Act, to replace the outdated term “Access.” Regardless of the term used, parenting time, contact, or access, describe the time that a child actually spends with each parent.

It is helpful to create a parenting schedule setting out periods of parenting time, contact, or access so that the child spends some time with both parents. The time could be equal, or nearly equal, as in cases of shared parenting, or it may be that the child spends the majority of their time in the care of one parent (the primary parent) but has scheduled visits with the other parent.

Each parenting schedule is different and will depend on what is best for your family circumstances.

The parenting schedule also dictates which parent has day-to-day decision-making powers as they flow from the schedule where the child is residing from day-to-day.

‘Best Interest of the Child/ren’ Principle and Child Custody

You may have heard the phrase, “best interests of the child” before, but may have wondered what exactly it means. All family law in Canada is based on this concept. All decisions made by any judge in the country relating to children are made in a child-centric manner so that the child’s best interests are always considered first. Before making a determination about decision-making and parenting time, a judge will examine a number of factors to determine what will best benefit the children.

The factors are set out in s.16(8) in the Divorce Act R.S.C., 1985, c. 3 (2nd Supp.). Simply put it is the condition, means, needs and other circumstances of the child. This is often read with input from s. 24 of the Ontario Children’s Law Reform Act, R.S.O. 1990, c. C.12 which provides, among other factors, consideration of:

  • The love, affection, and emotional ties with the child
  • The child’s own views and preferences (if they are old enough that those can be ascertained by a neutral party)
  • The child’s age, needs, and stage of development
  • The stability and history of care for the child
  • The child’s culture, religion, language, and heritage
  • The ability and willingness of each person to care and guide the child
  • The ability and willingness of each person to support the child’s relationship with others involved in the child’s care, including the other parent
  • Each person’s parenting plan for the upbringing of the child
  • The familial relationship of each person to the child
  • Each person’s past conduct if it relates to the child’s safety and security, such as a history of domestic violence or abuse

A judge must take these factors into consideration before making any decisions relating to the care of a child. The family law lawyers at M. G. Michaels & Associates can use these factors to help you express why your proposed parenting plan is what is in the child’s best interests. Or, we will advise you why your plan does not appear to be in their best interests and how it can be amended.

Whitby Child Custody Lawyers Explains Decision-Making Responsibilities

“Decision-making responsibility” is the new term that will be replacing the term “custody” in the Divorce Act, and although there are no plans yet to adopt the same language Provincially, the Ontario Family Law Act, and Children’s Law Reform Act, have noted by the Lieutenant-General to prepare for introducing language matching the Divorce Act language. The legislature realized that the term custody was outdated, confusing, and meaningless to the general public. The removal of the term “custody” will allow everyone to better understand what it is they are asking the Court for. Similarly, the term “access” is being replaced by “contact” or “parenting time”.

Parents, and other applicants, should now ask for the right to make decisions for their children in addition to requesting specific parenting time with them. These are two completely separate issues to be resolved, and a Court can award any number of combinations of both of those issues. For example, the parents might be granted joint decision-making responsibility regarding the children, even if that child lives primarily with one parent and only spends alternate weekends of parenting time with the other parent.

Decision-making responsibility includes the right to make decisions regarding a child’s health, education, religion, extra-curricular activities, travel, and residency. These are extremely important decisions for any child and will directly shape how they grow and develop. If two people are jointly appointed, they will have to work together for the best interests of the children. A lack of communication, differing views or an inability to co-operate with one another could seriously hamper the children. It is, therefore, crucial to ensure that the person(s) chosen to make these important decisions, will keep the children’s best interests in mind, and not their personal feelings about the other parent.

Whether or not you have decision-making responsibility for your child, if you are entitled to parenting time, you are also entitled to access information regarding your child without impediment by the other parent. Such information includes obtaining report cards and attending parent-teacher interviews; speaking with tutors or therapists treating the child; speaking with the soccer coach and attending practices and games; speaking with the doctor(s) and dentist about the child’s progress or illness, and so forth.

Assessing how decision-making responsibility is shared is an integral part of a family lawyer’s job when assisting clients. There are many factors that are taken into consideration, including each parent’s role before separation, however, the most important factor is always what is in the child’s best interests moving forward. At M. G. Michaels & Associates, we understand that parenting arrangement are usually a top priority for separating parents. Our child custody lawyers are standing by to assist you.

What Qualifies as Guardianship: Whitby Child Custody Lawyers Explain

Many people are surprised to learn that in family law the term ’guardianship‘ actually applies to a child’s property and not the fact that the child lives with their guardian. Even more surprising though is the fact that a child’s biological parent is NOT automatically a child’s guardian of property; they actually have to apply to Court for this right, and the Court will seek approval from the Office of the Children’s Lawyer, a department of the Provincial Ministry of the Attorney General. If a child receives a large amount of money (typically over $10,000), either through employment [child actors], an inheritance, gift, a lawsuit for damages, a life insurance policy, or another source, the child is under the age of majority, and no parent seeks guardianship, the Court actually takes on this role. The money will then be paid directly into Court to be held and invested for the child until they reach the age of majority (age 18 in Ontario) when the child will be able to withdraw their funds, as well as the accumulated interest.

If a parent wishes to take on this role themselves they must apply to the Court to be appointed as the child’s guardian of property. When looking at a parent’s application to become a guardian, the Court will consider the bond between the Applicant and the child, the merits of the Applicant’s management plan, and the views and preferences of the child themselves, if they are ascertainable. If appointed, the parent will have to keep careful records of their investment of the funds and transfer all property to the child themselves when they reach 18 years of age.

See our Guardianship Page for more information.

How Our Whitby Child Custody Lawyers Can Help

Navigating the nuances of custody, guardianship, and decision-making regarding children can be difficult for parents after separation. While the Divorce Act, Family Law Act, and Children’s Law Reform Act set out some rights and responsibilities to parents right out of the gate as a default, these rights and responsibilities can be challenged, varied, and tweaked to meet the individual needs and circumstances of each family.

At M. G. Michaels & Associates, Whitby family lawyers, we will help you ensure your children’s best interests and needs are met in the best possible manner. Call or email us now.