PARENTING AND CONTACT ORDERS PICKERING
(FORMERLY CUSTODY & ACCESS)
As of March 1, 2021, the terms “custody” and access” have been replaced with the term “parenting”. This means that custody and access orders will now be referred to as “parenting orders” or “contact orders”.
A “parenting order” is a court order allocating decision-making responsibility and/or parenting time to parents of the child, whereas a “contact order” is an order allowing a person other than a parent to have contact with a child and provides details of how such contact is to be conducted. More on these orders are explained below.
|Before March 1, 2021
|After March 1, 2021
|Decision-making and parenting time
These new terms are concerned with the child’s best interest and the parents’ role and responsibilities in caring for the child(ren); whereas custody and access were terms commonly associated with property ownership.
What happens to your existing custody and access order?
You can continue to rely on your existing custody and access order that was made before March 1, 2021, because your order will assume the effect of the new provisions. For instance, parents with existing custody orders are now parents with parenting time and decision-making responsibilities. Similarly, persons with an access order are considered to have parenting time. (s. 35.4 of the Divorce Act)
Making changes to an existing order
Changes in the law are not a reason for a change to your existing order. To request a change to an existing custody or access order, you must show that there has been a “material change in circumstances” in you or your child’s life.
Any changes to existing custody or access orders will reflect the new Divorce Act rules. For example, if you would like to change the time each parent spends with the child(ren), the new order will reflect the term “parenting time” and the court will consider the additional factors added to determine the best interests of the child (see below).
New Duties of Parties to a Proceeding:
Each party involved in a proceeding or is subject to an order made by the court must:
- Exercise parenting time, responsibility or contact in a manner that is consistent with the best interests of the child.
- Protect the child from conflict arising from the proceeding.
- Where appropriate, try to resolve matters through family dispute resolution.
- Provide complete, accurate and up-to-date information as required which would include:
- Income and asset disclosure.
- Information about other orders and proceedings e.g. criminal court orders.
- Comply with orders made until no longer in effect.
A parenting order is an order providing for the exercise of contact, parenting time and/or decision-making responsibility in respect of a child.
Who Can Apply for a Parenting Order?
- A parent of a child; or
- A person, other than a parent of the child, who stands in the place of a parent or intends to stand in the place of a parent; and
- Any other person other than a parent of the child, such as a grandparent.
Parenting time means the time that a child spends in the care of either parent, whether or not the child is physically with the parent during that time. In other words, parenting time is the time during which a person is primarily responsible for the child, including when the child is in school or daycare.
Responsibilities during Parenting Time
Unless the court orders otherwise, a person with scheduled parenting time has sole responsibility to make day-to-day decisions affecting the child during their parenting time. This includes decisions regarding bed times and what the child should eat, without the need to consult any other person with decision-making responsibility in relation to the child. However, a court could make a specific order about certain day-to-day decisions if it would be in the best interests of the child.
The parent with parenting time still has the right to be informed of the child(ren)’s health, education and welfare (Divorce Act s.16(5); Children’s Reform Act(CLRA) s.20(5)).
How to get Parenting Time?
Parenting time may be allocated by way of a schedule which may be determined by the court or by the parties themselves.
The advantage of having a schedule is that it provides structure as to when each parent is primarily responsible for the child and promotes stability and predictability for the child in knowing when they will be with each parent.
Types of Parenting Time Arrangements
The following reflect the changes in terminology that is used in the Child Support Guidelines for the purposes of child support and the time the child spends with each parent. They do not refer to who has responsibility to make major decisions about the child because that is determined by a decision-making order (explained further below).
|Before March 1, 2021
|After March 1, 2021
|Parent with the majority of parenting time (60% or more parenting time)
|Split Parenting Time
|Shared Parenting Time
1. Majority of parenting time (formerly sole custody)
Majority of parenting time refers to a situation where a child spends more than 60% of the time with one parent over the course of a year.
2. Split parenting time (formerly split custody)
Split parenting time involves multiple children, and each parent has the majority of parenting time (over 60%) with at least one of the children. For example, in a family with two children, mom will have the majority of parenting time (over 60%) over one child and dad will have the same with the other child.
3. Shared parenting time (formerly joint or shared custody)
Shared parenting time refers to circumstances where a child spends at least 40% of their time with each parent over the course of the year.
The court will determine the amount of child support to be paid according to the Child Support Guidelines, the parenting time awarded, and the condition, means, needs, and other circumstances of the parties.
Decision making responsibility
Decision-making responsibility refers to the authority to make “significant decisions about a child’s well-being”. Section 2(1) of the Divorce Act and the Children’s Law Reform Act which applies to non-married parent, define decision-making responsibility as “the responsibility for making significant decisions about a child’s well-being and in respect of the following:
- culture, language, religion and spirituality; and
- significant extra-curricular activities.
Types of Decision-Making Arrangements
You can make important decisions in a number of different ways:
- Sole decision-making responsibility, previously known as sole custody, gives one parent the ability to make all major decisions for the minor child(ren).
- Joint decision-making responsibility, formerly joint custody, allows both parents to consult each other and make the decisions together.
- Divided (parallel) decision-making responsibility is a type of joint decision-making responsibility where one parent is responsible for some decisions (for example, on health and religion), and the other parent is responsible for other decisions (for example, on education and extra-curricular activities).
Making Appropriate Decision-Making Arrangements
In determining which approach is appropriate in your circumstances, the most important consideration is your children’s best interests.
Joint decision-making may be appropriate if you and the other parent can cooperate well with each other on parenting issues. However, if you and the other parent are constantly conflicting or there is a power imbalance because of abuse or violence, joint decision-making or divided decision-making may expose your child(ren) to conflict.
It is also important to think about safety as you develop parenting arrangements.
Contact order (formerly access by non-parent)
A contact order is a court-ordered time that a person who is special to a child but is not their parent, spends with that child. Upon application by a person other than a parent, a court can make an order providing for contact between that person such as a grandparent and a child.
Contact can be in the form of in-person visits or any form of communication such as telephone calls, texts and video chats.
Who can apply?
A person other than a parent can apply for contact with respect to a child.
In other words, a non-parent such as stepparents, grandparents or any other third party can apply for contact with a child and to have time reserved to spend with the child.
There are special requirements for non-parents, such as a mandatory police records checks. They must also authorize the Children’s Aid Society in their area to provide a report that outlines the individual’s involvement in any CAS cases. Court records will also be checked for any previous family cases involving the non-parent.
Contents of parenting and contact orders
Besides allocating parenting time and decision-making responsibilities, a parenting order may also include any other orders necessary such as communication between the parties or between a party and the child, prohibiting a party from changing the child’s residence, school, or day care, prohibiting a party from removing the child from Ontario, etc.,
Applying for parenting and contact orders in Ontario
In Ontario, parenting and contact orders are governed by the federal Divorce Act and the Children’s Law Reform Act(CLRA). The Divorce Act applies to those who are married and getting a divorce. Under the Divorce Act, courts in Ontario can hear and determine the case if your spouse has been living in Ontario for at least one year preceding the proceeding. If the child is connected to another province, the proceedings may be transferred on application. Elements that may connect the child to another province can include the school they attend, how much time they spend in the province and/or where their physician is location.
The CLRA applies to parents who are not married or those who are not getting a divorce. In these cases, Ontario courts have jurisdiction to hear and determine the case where:
- The child’s normal residence is in Ontario; or
- If the child’s normal residence is not Ontario but
- the child is physically in Ontario at the start of the application,
- there is evidence that the best interest of the child is in Ontario,
- no application for decision making responsibility, parenting time or contact with respect to the child is pending in another place,
- no extra-provincial order has been recognized by an Ontario court,
- the child has a real and substantial connection to Ontario; and
- on the balance of convenience, it is appropriate to exercise jurisdiction in Ontario.
It should be noted that courts have the ability to decline to allow the case in their jurisdiction if they believe that another court is more appropriate.
Statutory Factors considered when making a parenting or contact order.
The benchmark for resolving parenting and contact issues is the best interests of the child. The test is set out in both the Divorce Act (s. 16(8)) and the CLRA (s. 24). The court considers ONLY the best interests of the child when making a parenting or a contact order. The court must consider all factors relating to the circumstances of the child and must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors to be considered when determining a child’s best interest include:
- the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
- the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
- each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
- the history of care of the child;
- the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
- the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- any plans for the child’s care;
- the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
- the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
- any family violence and its impact on, among other things,
- the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
- the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
- any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
Parenting time consistent with the best interest of the child
Under section 16(10) of the Divorce Act and section 24(6) of the Children’s Law Reform Act there is a legal consideration called the “maximum contact principle,” which essentially states that a child should have as much parenting time with both parents as is in the child’s best interest.
This principle is now also subject to the “primary consideration” that a court must consider a child’s physical, emotional and psychological safety, security and well-being above all else. This may be particularly important in cases of family violence.
It is important to note that maximum contact does not equate to shared parenting. This is a common misconception. The law simply requires each parent to have as much time as possible with the child as is in the child’s best interest. In some cases, that may mean shared parenting, in other cases, it may equate to what others may perceive as minimal parenting time. The best interest of the child would be the prevailing consideration.
A parent’s conduct or misconduct is only taken into consideration if it affects the child or the parent’s ability to care for the child. Alcohol and drug abuse are two of the primary concerns. Violence towards the other spouse, child, or any other household member will be taken into consideration. Self-defense or action taken to protect another person is not considered violence or abuse.
Supervised parenting time
Supervised parenting time is where a parent is permitted to interact with the child only under the supervision of another adult. This can be at a specialized center where a social worker, counselor or any other designated party is assigned to be present. It can also include parenting time where the other parent is present or an extended family member is present.
Supervised parenting time is usually enforced where the child is at risk in a parent’s care due to violence, alcohol or drug addiction or has health problems that may limit their ability to care for the child. The parent seeking the supervised parenting time has to demonstrate that it is necessary.
Enforcement of a parenting or contact order
There are a number of measures in place to have these orders enforced. Failing to follow a temporary or final order of the court is considered contempt, which can result in a fine or imprisonment.
In exceptional circumstance, there could be a clause in the order that allows any police agency (Toronto Police, OPP, RCMP) to assist in removing the child from the parent who took the child and have them returned to the parent named on the order. Lawyers may also assist by contacting the opposing counsel and eliciting their assistance in having the child returned without police interference.
It is always wise to be as courteous as possible in such cases. If the other party is late in returning the child back a few minutes, it may be best to simply talk to them about the importance of timing. Police assistance should be a last resort.
Child is withheld or abducted:
The following are enforcement options when a child is withheld or abducted:
- Abduction of a child under the age of 14 by a parent or guardian in contravention of a custody order is a criminal offence under ss. 282–283 of the Criminal Code.
- Under the Family Orders and Agreements Enforcement Assistance Act, a federal government agency assists in tracing an abducted child or abducting parent. Either a police force or a parent with decision-making responsibility under a court order or an agreement may seek assistance from this unit.
- If a child has been abducted to a state that is signatory to the Hague Convention, the parent with decision-making responsibility may contact the Central Authority in this jurisdiction, which will in turn contact the Central Authority in the receiving jurisdiction to take steps for the recovery of the child.
- Under the CLRA, the court has authority to make orders directing the appropriate police force to locate and apprehend a child, including search and entry orders.
Are you recently separated? Do you have a pareting issue?
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AP Lawyers has assisted clients with negotiating simple parenting plans. We have also worked on complex cases that have involved taking the matter to Trial and in some cases, appealed final custody and access orders.
Angela Princewill has been interviewed extensively on the subject including with the Law Times and Advocate Daily.
1) M v. A.
Following M & A’s separation, M retained AP Lawyers to help him negotiate parenting time for the parties’ child.
This matter went to trial because M wanted equal parenting time with his child and joint custody so he could be involved in making important decisions affecting the child. A wanted sole custody and only minimal access to M.
At Trial, Angela Princewill was able to show that M is a loving, capable and experienced father and that it was in the child’s best interest to spend maximum time with him. M was also able to get share decision-making with A.
2) C.F. v. C.M.
C.F. retained AP Lawyers to negotiate a custody and access schedule that worked in the best interest of the parties’ two children. One child was school age, the other was not. C.F. worked from 9am – 4pm while C.M. did shift work. His shifts were usually 12 hours or longer, but he insisted on having the children half the time.
We were successful in having the children live primarily with C.F. as she clearly was the parent who would be better able to meet their needs, such as pick up and drop off to school, attending extracurricular activities, be available to receive calls in the event of an emergency, etc.
The only important question when dealing with custody and access issues, is “what is in the best interest of the child?”
Our success lies in looking at what our client is asking and looking at how it fits with the child’s best interest. Our focus is always on the child not on the convenience or mere preference of the opposing party.
We employ all tools possible to advance our client’s objectives starting with negotiation. Mediation and Arbitration where appropriate can be a great tool in resolving the issues. We have a team of experienced and passionate