If you and your spouse have children and are considering divorce, it is important to familiarize yourself with your decision making and parenting time rights and obligations to your children. This is one topic you cannot avoid during divorce. However, in most cases, when you and your spouse cannot agree on the issue of parenting time, the court will decide for you.
The biggest challenge with court decisions is that they can swing either way. For example, when the court makes a ruling regarding decision making and parenting time in a divorce petition, it may or may not favour your interest. This is a risk you and your spouse do not want to take.
An Overview of Decision Making Laws in Ontario
Decision making and parenting time is usually granted in the best interest of the child, and there are a few principles that courts try to rely on in order to make the process easier for the child. Generally, siblings are not separated so as to keep the status quo and maintain regularity. The courts often take in the opinion of the child as well, especially if they are older.
As per Canadian family laws, both parents have equal rights to decision making and parenting time of all children in the marriage. However, this rule will only change when your ex-spouse files a motion with a family court requesting them to deny you certain decision making rights. Remember that the past conduct of either parent is not relevant unless it has an impact on your/their ability to be a guardian to the child.
In return, the court will consider the motion and other factors such as:
- your ability to provide for the child financially and emotionally;
- the number of children in the marriage;
- the status quo in the marriage;
- the primary caregiver of the child during the marriage;
- the child’s special needs, if any;
- your relationship with the child; and
- your child’s wishes (only if they are old enough to convey such wishes).
What Are Some Major Considerations During Decision Making and Parenting Time Discussions?
As mentioned earlier, the issue of decision making and parenting time does not have to be solved in court. Instead, you can discuss this topic with your spouse through a process called mediation. When you reach an agreement, you will sign a parenting plan, a legally enforceable document disclosing the terms of the agreement regarding decision making and parenting time.
While child custody discussions cover a wide range of topics, some of the most common include:
Also known as parenting time, this is the time the children spend with the parent who does not have physical custody. You and your spouse will need to create a visitation schedule that works with your personal schedule, including employment.
Raising a child is expensive, but you and your spouse can agree to share the costs involved. These expenses vary depending on the needs of the child. Examples include education and leisure.
Consider important dates such as the child’s birthday, school vacations, and so on.
You may need to discuss how and when to communicate with your ex-spouse regarding your child or children. For example, find out if they prefer communicating via text messages to phone calls. Regarding the issue of communication, also discuss how to reach each other during emergencies.
Some children may have unique needs worth addressing during child custody discussions. For example, if the child has a disability that requires specialized care, this is something you and your spouse will discuss before the divorce.
Such unique considerations are not only limited to children; their parent’s conduct also counts. For example, if one of the parents has a substance abuse problem, this could negatively impact their right to custody. In addition, parental alienation might also influence child custody in some cases.
What if my Spouse and I Cannot Agree on Decision Making and Parental Time?
If the parents cannot come to an agreement about the custody of the children at the time of separation, they may ask the courts to decide the issue by: (a) starting a custody proceeding under the Children’s Law Reform Act or (b) by claiming custody in a divorce proceeding.
At the interim custody stage, the courts usually will not disrupt the status quo, therefore whoever has the child in custody at the time of the motion is generally allowed to keep the child until the trial.
Either or both spouses may make an application for custody, however another person may make an application so long as they receive permission from the courts to do so.
Under the Children’s Law Reform Act, the court can appoint a person who has technical or professional skills (such as a psychologist or a social worker) to assess the ability of either spouse to care for the child. This assessment report can help the judge decide the issue of custody.
There are also a variety of enforcements that can occur when the courts make a ruling on the issue of custody. Some examples of enforcement orders are as follows: (a) The court may order that custody or access is supervised by somebody (b) may make an order restraining a person from contacting the children or being a specified distance from them (c) make specific orders about support payments, and passports to ensure the party does not unlawfully remove the child from the province or country.
The decision of the courts regarding custody has a legal effect throughout Canada and may be registered in any court in a province and enforced as an order of that court.
Variation of Custody
If you did not receive a decision regarding custody that you may have wanted, you may make a variation of custody order. This variation proceeding can be commenced as long as there has been a change in the condition, means, needs or other circumstances of the child since the making of the custody order. In this circumstance, the court has the power to change, cancel or suspend a custody order or any of its provisions.
What Is Parental Alienation?
In simple terms, parental alienation is when someone manipulates a child into choosing one parent over the other. Such cases are common in a contested divorce. Unfortunately, in Canada, no law prohibits parental alienation. However, given that parental alienation has become an issue of concern in recent years, many judges recognize its influence in child custody.
For this reason, the judge might consider parental alienation if the other party raises the issue during divorce proceedings. Some of the most common signs of parental alienation include:
- your ex-spouse telling the children details about the divorce;
- your ex-spouse making false domestic violence allegations against you;
- your ex-spouse speaking badly about you in the presence of your children;
- your ex-spouse using negative body language in front of your children;
- your children refusing to communicate with you;
- your ex-spouse preventing you from accessing your children; or
- your ex-spouse asking your children to choose one parent.
How to Choose the Best Toronto Lawyer for Child Custody
Toronto is home to many family law firms offering legal representation for child custody cases. However, this does not necessarily mean that any law firm you come across will serve your unique needs. When looking for the best child custody lawyer in Toronto, here is what you need to look out for:
Experience: You want a lawyer experienced in handling such cases. When you find a potential candidate, talk to them about similar cases they have handled in the past.
Communication: Does the lawyer respond to your calls, texts, or emails? While you do not expect them to respond instantly because they could be working on other commitments, a good lawyer should respond within one business day.
Knowledge of jurisdiction laws: Does the lawyer sound knowledgeable regarding your case and the jurisdiction laws?
Time: Does the lawyer have time for you? Time is usually one of the most important things a lawyer or law firm can give its clients.
How the Toronto, ON, Lawyers at Bykov Law Can Help
When you need lawyers who understand your rights as a parent and dedicate their time, knowledge, and resources to protecting them, look no further than Bykov Law. Our family law firm, based in Toronto, offers a client-centred and results-driven approach to every case we handle. We understand the pain of not being able to see your child when you should. That aside, the divorce with your ex-spouse should not be a reason to deny you access to your child.
Also, if you are the spouse claiming custody of your child or children after divorce, you deserve to be heard and understood. Above all, you deserve a lawyer who will fight for your parental rights as far as obtaining custody for your child is concerned. If this is what you are going through, contact us at 416.519.3259 to schedule a consultation with a family lawyer.