Child Custody

Child Custody And Access Rights

Child custody and access rights are often the most contested aspects of a divorce. Know your rights and obligations.

One of the most important decisions separated or divorced parents have to make is on who gets primary custody of the children. 

Where a divorce is contested, child custody often becomes a battleground for parents determined to force a decision on what they feel is best for the child.

Child custody, now known in Ontario as decision making responsibility, is the right to make important decisions on how to care for and raise a child. This includes decisions on the child’s health, religion, and education.

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    Who Gets Custody of a Child in Ontario?

    Either one or both parents can get custody of a child after divorce. If you have sole custody, you will have the power to make all decisions on the child’s care and upbringing. With joint custody both parents have decision making responsibility.

    Shared custody addresses the question on which parent the child lives with and when. It has much to do with how much child support is paid and does not assign decision making responsibility. 

    Split custody applies where there is more than one child and a decision is made on which parent gets decision making responsibility for which child/children.

    Parents can also share decision making responsibility for one child, with each being responsible for specific decisions. There is also accommodation for de facto decision making responsibility where a parent lives with the child full-time but do not have the legal decision making responsibility.

    Should you go to court?

    Courts typically don’t interfere where parents have an agreement on how they will care for and raise the child. But if you fail to agree on a parenting plan, you can file a court application. 

    For judges, the child’s best interests come first. Among the factors a judge will consider in a child custody application include:

    • the preferences of the child,
    • how long the child has lived in a stable home, 
    • the emotional ties between the child and the one claiming custody. 

    The decision on who gets child custody is not affected by the age of the child. Neither do marital offenses like divorce or the past conduct of the parent. Unless the conduct, as in the case of violence against the child or the spouse, affects their parenting ability or endangers the child’s safety.

    If you and your ex-spouse can’t agree on a parenting agreement, you are best served seeking the advice of a family law attorney.

    How Is Parenting Time Determined in Ontario?

    Decision making responsibility is not decided on who between the parents the child spends the most time with. The time a child spends in the care of of a parent is called parenting time. 

    Parents can decide on a parenting plan that sets out how much time each parent can spend with the child. It is important that you have this written down, signed on, and filed with the court. 

    The parenting time arrangement can also be included in a separation agreement. Where you filed a court application, the court order will have parenting time clearly spelled out. 

    However, the court may turn down your request for parenting time where they fear you may harm the child, you may not return the child, or where there is fear you may harm the parent with decision making responsibility. Or, you may be allowed supervised parenting time. 

    Where the child spends at least 40 percent of their time with either parent, the arrangement is known as shared parenting time. It differs from split parenting time that applies where there is more than one child and each parent gets parenting time for specific children.

    Cases where child custody and access rights are contested often get complicated and messy. To get the best outcome for your child, seek the help of a family law attorney before taking any action.

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