In separations, custody of the children is one of the most difficult aspects to agree on. In Ontario, courts determine custody based on the best interest of the child. Custody and access may be awarded to non-parents as well.
Custody and Access
Custody can be defined as the legal and practical relationship between the parents and children. The legal definition of ‘custody’ describes the legal right of a parent or parents to make decisions for their children. The term custody is often misconstrued and used interchangeably with the term access. The basic distinction is that custody means decision-making and access means time spent with the child.
Types of Child Custody in Ontario
Both parents have custody of the children. This type of custody is for parents who can cooperate on parenting matters to make decisions in the best interest of their children. Courts are more likely to make joint custody orders in cases with no conflict, good communication, and ability to co-parent.
There are two types of joint custody:
Joint Legal Custody: Where both parents are permitted to have input on major decisions affecting the children, such as education and health. The residence of the children and visitation schedules may differ.
Joint Physical Custody / Shared Custody: Where both parents spend at least 40% of the time with the children.
2. Sole Custody
When only one parent has custody of the children. The children’s primary residence is with the parent who has sole custody, and the other parent may or may not have access to the children.
3. Split Custody
When one parent has custody of some of the children and the other parent has custody of the other children. However, separating younger children from their siblings is typically not advised; nevertheless, pre-teens and teenagers are often able to choose to live with different parents.
Child Custody Agreements
Joint custody
The fundamental principle of a joint custody agreement is that both parents have custody and that they work together in cooperation toward the best interest for their children. Today, joint custody is very frequently used.
Joint custody does not necessarily mean that the children reside 50/50 with both parents. The specific circumstances of the children’s residence can vary greatly within the agreement. For instance, many agreements provide a child with a primary residence and a secondary residence with the other parent on weekends, holidays, etc.
An optimal joint custody agreement must be developed according to the specific needs and routines of an individual child and parent, with emphasis on the child’s needs. All joint custody arrangements require a commitment by the parents to work in cooperation, notwithstanding being separated, and make joint decisions to the benefit of the children. These elements require consideration during joint custody negotiations, which are then formalized into joint custody agreements.
Sole Custody
Sole custody refers to cases where only one parent has both physical and legal custody of a child. This means one parent makes all of the important decisions in a child’s life i.e. healthcare and education.
Typically, the other non-custodial parent has access to the child. This parent has the right to some physical time with the child, and the right to inquire and receive information from the other parent in terms of the health, education, and well-being of the child.
If a parent with sole custody dies, the other parent does not automatically receive custody. A parent with sole custody or a parent entitled to custody can appoint by way of testamentary disposition (will) a legal guardian for the children. This appointment is only binding for 90 days (in accordance with the Children’s Law Reform Act) but the court retains the final authority to appoint the guardian.
Split Custody
Split custody is when one parent has sole custody of one or more children and the other parent has custody of the other children. This is not a common alternative, as it will very rarely be in the best interest of the child to be separated from their siblings.
Nevertheless, when children are older (i.e. pre-teens and teens), their views and preferences have significantly more influence on how the custody agreement is tailored. On the other hand, the views of primary grade children will typically have much less effect on the outcome of an agreement.
*The content on this website is not legal advice, you should always obtain advice from a lawyer with the particulars of your case.