21st Century Family Law Custody & Access

Tips from a Family Lawyer

Decision Making (Custody/ Access)

Although it is perhaps the most familiar term in family law, as of March 2021, the law of Canada no longer utilizes the term “custody.” This is true whether you are a married couple divorcing or a common-law couple who is separating.

Sole Custody

Most people think of custody as relating to the “geography” of kids; in other words, if children live primarily with one parent in St. Thomas and visit the other parent in London on alternate weekends, the former parent has “custody” of the children. (This is not correct!) In fact, in legal terms, custody relates to the major decisions that parents make on behalf of their children.  Historically, “legal custody” always referred to decision-making and not “geography.” “Physical custody” referred to the residence of children.)

When a parent is seeking sole custody, they are now said to be seeking “sole decision-making responsibility.”

In an effort to reduce the win/lose attitude toward parenting disputes over “custody”, the term custody has been changed. It is now known as “decision-making responsibility.” Decisions including the health and well-being of the child, educational choices, and religious upbringing are examples of key decisions that parents make.  Family law makes it clear, that unless there is a court order or a written agreement both parents are equally entitled to the custody of their children.

Joint Custody

When deciding on decision-making responsibility for children the courts apply the “best interest of the children” test.    Joint decision-making means that the parents are able to communicate with each other and make decisions jointly and in the best interest of their children.  In joint decision-making arrangements, parents share the responsibility for decision-making.  In joint decision-making arrangements, it is common for the child to reside with one parent and spend time with the other.  However, each parent has equal rights to decision-making.  This type of custody arrangement provides continued interaction with both parents and helps to maintain strong bonds between the parents and the children.   To obtain an order for joint decision-making you must be able to demonstrate a history of co-operation and communication with the other parent. There must be factual evidence in support of this claim.

In situations where there is conflict, the parental relationship is strained, one parent is undermining the relationship between the other parent and the child and there is no communication or cooperation, a court may grant sole decision making to one parent. Once again the court will use the “best interests of the child test” when making a decision.

Tips from a Family Lawyer on Custody Battles

Keep records of your involvement in decision-making for your child. Did you take her to doctor’s appointments? Did you research and register her for extra-curriculars or daycare? Think about how you can help your lawyer prove how decisions were made. Texts and emails, applications, receipts and calendars are all helpful evidence.

If you are separated and dealing with a dispute about decision making, remember that until a court orders otherwise, your child’s other parent has a right to be informed and consulted about decisions. As much as possible, keep the other parent in the loop. A parent’s willingness to communicate and cooperate with the other parent is an important part of “the best interests analysis.”

High Conflict Custody and Access

COYNE FAMILY LAW focuses on custody and access litigation in St. Thomas and London, Ontario.

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This Web site provides general information on family law related matters and should not be relied upon as legal advice. If you would like to retain COYNE LAW to give you legal advice, please contact London/ST. Thomas Family Lawyer Rebecca Coyne, I would be pleased to discuss whether or not the firm can assist you.