Child custody and access issues during the period of separation and divorce can be emotionally taxing for all involved. It is a particularly difficult time for children who are dealing with the emotions of a marital breakdown along with adjusting to significant shifts in their home life. It is vital that you as a parent are aware of your rights and obligations relating to custody and access following a marital breakdown. At G Law Group we understand that you more than anyone want to ensure that your child(ren)’s interests are protected. We will work with you to negotiate a custody/access arrangement that is best for you and your child(ren).
The primary statute dealing with custody and access in Ontario is the Children’s Reform Act (CLRA).
The guiding principle that the court will use to determine custody and access issues is ‘the best interests of the child’. Custody and access are terms that are often used interchangeably, however, there are important differences between the two.
What is the difference between custody and access?
The terms custody and access are often confused to mean the same thing. While custody and access are both terms used within separation and divorce proceedings, they are not one in the same.
When a parent has custody, they are allowed to make decisions in relation to the child’s schooling, medical needs, dental needs, religious upbringing and general well-being.
Custody can be divided between parents, so that they jointly make decisions with respect to the needs of the child, or the court may decide that one parent should be given sole custody.
Where sole custody is given to one parent, that parent is permitted to make decisions for the child without the consent of other parent. Sole custody is often granted in cases when the two parents have fundamental differences on decisions relating to the child’s needs. However, even if a parent is given sole custody, the court may state that they are prohibited from making certain decisions, such as decisions relating to schooling or medical needs, without the consent of the non-custodial parent. A typical restriction for a parent who has sole custody is that they not be able to move the child outside of a specified area without the express consent of the non-custodial parent.
Access refers to how often each parent sees the child(ren). The term access relates to the amount of time that a parent is allowed to see their child and the specifics about when the parent sees the child. For example, you may have an access order that allows you to see your child each week from Friday 5:00pm until Sunday at 5:00pm. Access could be supervised or unsupervised. Supervised access means that a third party is present when the parent with access visits their child for the duration of the visit. Unsupervised access means that the parent with access can visit their child without the supervision of a third-party.
What is the difference between sole custody, joint custody and shared custody?
Custody can be sole, joint or shared.
Sole custody means that one parent is entitled to unilaterally make decisions with respect to the child’s schooling, religious upbringing, medical needs, dental needs etc. A parent who is awarded sole custody does not require permission/consent from the other parent when making these decisions. A parent with sole custody is referred to as the ‘custodial parent’ and is allowed to make all major decisions about the child(ren)’s life. The non-custodial parent or access parents rights are restricted from making these decisions with respect to the child(ren)’s life.
Where both parents share custody of the child it is referred to as joint custody. This means that both parents make major decisions (as noted above) together.
One parent may still have joint custody even if the child does not reside with them for an equal amount of time. This means that a child could live primarily with one parent but both parents have an equal right to make major life decisions with respect to the child(ren)’s life.
Shared custody means that the child lives with each parent at least 40% of the time. In these situations the parents are given shared custody and are both entitled to make decisions with respect to the child(ren)’s major life decisions such as schooling, religious upbringing etc. In shared custody situations, the child will spend almost equal amounts of time with each parent.
What is the best way to deal with custody/access issues?
When it comes to custody/access issues it is always best to try and deal with these matters outside of court. The best avenue to deal with custody/access matters is through a separation agreement. This will require that the couples be open to dealing with custody/access amicably usually with the assistance of a divorce lawyer. This method is the least expensive and generally the most favorable way to come to an agreement on custody/access plans.
Where the parties are unwilling to cooperate on custody/access issues, it will require court intervention. When the parties cannot come to an agreement on custody/access plans, it is left to the court to decide what is in the best interests of your child(ren). The court will determine an appropriate custody/access plan based on the evidence presented by each party.
How is child support calculated?
There are 3 things that determine how child support is calculated:
- the number of children;
- if the payor parent lives within Ontario or outside of Ontario;
- the payor parent’s gross annual income.
Child support in Ontario is calculated based on the Child Support Guidelines (insert link to Child Support Guidelines). Each Province has a table that outlines the basic amount of child support that covers basic monthly expenses such as food, clothing and school supplies. This is referred to as the table amount.
The amount of child support the payor is required to pay is based on their gross annual income. In straightforward cases, the table amount is used to determine how much child support the payor is required to pay. In more complicated cases the court will use the table amount as the starting point.
If both parents live in Ontario, the Ontario table is used to determine the amount of child support that is to be paid. If they payor lives in another Province in Canada, the table from that Province will be used to determine how much child support is to be paid. If the payor lives outside of Canada and the payee parent lives in Ontario, the Ontario table will apply.
What are the ways to set up child support?
Child support can generally be arranged in one of three ways:
- Written Agreement
- Court order
If you and your partner want to set up custody payments online you can visit the following link: (https://www.ontario.ca/page/set-up-or-update-child-support-online)
The two parties could come to an agreement amongst themselves, or through their lawyer or mediator with respect to child support. This agreement should be written in which the child support payments you have agreed upon are clearly outlined.
The issue of child support could be brought before the court and the court could determine the amount of support that should be paid.
How do I make or receive a child support payment?
Child support payments that are set up online or through the court will be filed with the Family Responsibility Office (FRO). The FRO will outline how the money should be paid on a monthly basis, e.g through direct deposit.
If you and your partner have a written agreement on child support you can still have it administered through the FRO by submitting a copy of the agreement to the FRO along with an affidavit. If your lawyer assisted in writing this agreement, they will be able to assist you with filing it with the FRO.