When parents separate or divorce, decisions about children are often the most emotionally charged and important issues to resolve. Understanding child custody and access rights in Ontario can help parents navigate this difficult process while keeping the focus where it belongs—on the best interests of the children.
Understanding Custody vs. Access
In Ontario, "custody" refers to the right to make important decisions about a child's life, including: education (school choice, special programs), healthcare (medical treatments, therapy), religion (religious education, practices), and major life decisions.
"Access" (now often called "parenting time") refers to the time a child spends with a parent. The parent with access rights has the responsibility to care for the child during their parenting time but does not necessarily have decision-making authority.
It's important to note that both parents have equal rights to their children unless a court orders otherwise. Separation or divorce doesn't change this fundamental principle.
Types of Custody Arrangements
Sole Custody: One parent has the right to make all major decisions about the child. The other parent typically has access/parenting time. The custodial parent must still consider the other parent's views but makes the final decision.
Joint Custody: Both parents share decision-making authority. Requires good communication and cooperation between parents. Doesn't necessarily mean equal parenting time (that's a separate issue). Parents must consult each other and agree on major decisions.
Split Custody: Each parent has sole custody of one or more children (rare and generally not in children's best interests to split siblings). Usually only considered in exceptional circumstances.
Shared Custody/Parenting: Children spend at least 40% of the time with each parent. Can be combined with joint decision-making. May impact child support calculations.
The Best Interests of the Child
Ontario courts use the "best interests of the child" test when making custody and access decisions. Factors considered include: the child's physical, emotional, and psychological needs, the child's relationship with each parent, each parent's ability to meet the child's needs, the child's views and preferences (depending on age and maturity), the permanence and stability of the proposed custody arrangement, plans for the child's care and upbringing, any family violence or abuse, and the cultural, linguistic, and spiritual background of the child.
Courts do not automatically favor mothers over fathers. Each case is decided based on its specific circumstances and what arrangement will best serve the child's interests.
Creating a Parenting Plan
A parenting plan is a written agreement that outlines how parents will share parenting responsibilities and time with their children. A comprehensive parenting plan should address: regular schedule (weekdays, weekends, overnight visits), holiday and special occasion schedule, vacation time, transportation arrangements, communication between parents, communication between children and non-residential parent, decision-making process for major issues, dispute resolution method, and plan for future modifications as children grow.
A detailed, realistic parenting plan reduces conflict and provides stability for children. It should be flexible enough to accommodate changes but specific enough to prevent disputes.
Modifying Custody and Access Orders
Custody and access arrangements can be modified if there has been a material change in circumstances since the original order. Examples of material changes include: a parent relocating, significant changes in a parent's life circumstances (new job, remarriage, health issues), changes in the child's needs as they grow, evidence of parental alienation or interference with access, and concerns about child safety.
To change an existing order, you must apply to the court and prove: there has been a material change in circumstances, the change was not contemplated when the original order was made, and the requested change is in the child's best interests.
The threshold for changing custody arrangements is high. Courts are reluctant to disrupt stable arrangements unless there's compelling evidence it's necessary for the child's well-being.
Conclusion
Child custody and access disputes are among the most challenging aspects of family law. While the process can be emotionally difficult, keeping the focus on your children's best interests is paramount. Many custody disputes can be resolved through negotiation, mediation, or collaborative law without going to court. However, when agreement isn't possible, you need experienced legal representation to protect your parental rights and your children's well-being. If you're facing custody issues, contact Kanevsky Law Office today. We'll help you understand your rights, explore all options for resolution, and fight for the best possible outcome for you and your children.
