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Divorce Act & Custody Considerations

The separation process is difficult and often times emotionally driven. These emotions are frequently amplified when issues of custody and access are at play. Most parents find the notion of having a third party determine when, where, how often and if they will be permitted to spend time with their own child(ren) a difficult concept to accept.

The federal Divorce Act, requires the court to consider “only the best interests of the child as determined by reference to the condition, means, needs and other circumstances of the child”. Although numerous sections of the Divorce Act makes reference to the issue of access, the singular test that a court will apply when tasked with making an order for custody and access under federal legislation is the “best interests of the child”.

Section 24(1) of the provincial Children’s Law Reform Act, R.S.O. 1990, c.C.12 set out the factors that the court is to consider when making a determination in regards to the best interests of the child. These factors include:

  • the love, affection and emotional ties between the child and,
    • each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
    • other members of the child’s family who reside with the child, and
    • persons involved in the child’s care and upbringing;
  • the child’s view and preferences, if they can reasonably be ascertained;
  • the length of time the child has lived in a stable home environment;
  • the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
  • the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
  • the permanence and stability of the family unit with which it is proposed the child will live;
  • the ability of each person applying for custody of or access to the child to act as a parent; and
  • any familiar relationship between the child and each person who is a party to the application.

Both the Divorce Act and the Children’s Law Reform Act provide the court with the jurisdiction to impose such terms, conditions or restrictions to custody and access orders that it may deem appropriate. The court will make determinations related to custody and access on a case by case basis taking numerous factors into consideration. Some of the factors that will be considered include: the age of the child(ren), the child(ren)’s activities, the child(ren)’s relationship with the person requesting access, the child(ren)’s health, parenting capabilities of the access parent, and the relationship between the custodial parent and access parent. This list is non-exhaustive. Once a court determines that making an order for access is in the best interests of a child(ren) the court must then determine what the terms of access should be.

Case law relating to the issue of access is vast, fact driven and often complex. When a parent is lacking parenting skills a court may find that it is not in the best interests of the child(ren) for access to be ordered. Physical distance between the parents may also impact the frequency and duration of access visits. In some instances courts have found that it may not be in the best interests of a young child(ren) to be subjected to frequent long distance travel.

The Divorce Act creates a presumption that children will benefit from maximum contact with both parents, however, this is certainly no guarantee that a court will order shared custody in every case.

When seeking an order for custody and/or access it is important to understand that there is no “standard” or cookie cutter arrangement and the court will consider numerous factors and make an order based on the particular facts of the case. It is therefore critically important to seek legal advice from experienced family law counsel when dealing with custody and/or access disputes.

This article is provided for general information purposes and should not be considered a legal opinion. Clients are advised to obtain legal advice on their specific situations.

If you have questions, please reach out

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