Let’s be honest. What’s more important than who gets custody of your children when you are going through a separation or divorce?
Ontario child custody issues can easily overwhelm any parent in a separation or divorce.
You’ve come to the right place to find out more about your legal rights when it comes to dealing with custody of your children.
I don’t need to convince you that you need the assistance of an experienced family lawyer to solve your child custody issues with your spouse. For more than 26 years now, Thomas O’Malley has been helping parents solve their child custody and access issues as a skilled and hard-working family lawyer. Call him today at (905) 434-8837 so that he can help solve your child custody and access issues as well as any other family law issues. It’s the only way to go.
What Does “Custody” of Your Children Mean in Ontario?
What does custody actually mean? Custody refers to which parent makes the important decisions about your children’s lives. This includes decisions about their school, health, religion, and sport activities.
When a parent has “sole custody” of the children, a parent can make all these important decisions for their children. In this situation, the children normally live with the parent on a full-time basis.
When parents have joint custody of their children, they must consult with each other about the major decisions affecting their children, including education, medical issues, religion, and extracurricular activities. Joint custody does not necessarily mean that the children live with each parent on an equal basis.
The key to joint custody is that you must get along with the other parent. You must be able to make decisions about your children in a co-operative, helpful manner. If you and your spouse are always arguing about the issues in your children’s lives, joint custody probably will not work.
You are entitled to regular access to your children regardless of the custody situation in your separation or divorce. You are entitled to all information about your children from third parties, such as schools and doctors.
The Legal Test for Child Custody in Ontario
The ultimate test for determining custody in your case is what is in the best interests of your children. The family law court will examine the details of your situation and determine the best custody arrangement for your children when you and your spouse cannot agree on the proper custody arrangement in your situation.
You might even give careful consideration to creating a detailed parenting plan that covers most aspects of your children’s lives so that there is no misunderstanding about how your children should be raised.
You should first see if you can negotiate the proper custody and parenting arrangements in a separation agreement with your spouse. When your spouse is taking an unreasonable position about child custody and access in your separation or divorce, you should seriously consider taking the matter to family court in Oshawa so that the important issue of child custody can be resolved.
The Key to Solving Your Child Custody Issues
Just take a minute to consider how much easier dealing with your child custody and access issues will become when you talk to Thomas O’Malley, an experienced Oshawa family law and divorce lawyer.
Clearly, you’ll be in a better position to protect your legal rights when you get a wealth of essential family law advice about your custody and access situation at your meeting with Mr. O’Malley. You’ll wonder how you ever got along without it.
He takes the mystery out of the separation, divorce and family law process when you come to your information-packed meeting or consultation with him.
There’s no better time than right now. Call Thomas O’Malley today at (905) 434-8837 to set up your initial consultation and protect your family law rights.
Get even more critical information by scanning this article on how to protect your legal rights working with an experienced family law and divorce lawyer.
More and More Parents Have Joint Custody of Their Children
The key terms in dealing with your children in your separation or divorce are the terms “custody” and “access”. I will deal with the issue of access shortly. In dealing with the issue of custody, you often hear the terms “sole custody” and “joint custody”. Whether the issue of custody is dealt with in court or is settled before court in a separation agreement or a settlement, you generally have either sole custody or joint custody of your children.
Sole custody can be defined in the following way:
To award one parent the exclusive custody of a child is to clothe that parent, for whatever period of time he or she is awarded custody, with full parental control over, and ultimate parental responsibility for the care, upbringing and education of the child, generally to the exclusion of the right of the other parent to interfere in decisions that are made in exercising that control or in carrying out that responsibility.
Sole custody gives you the right to make all the decisions respecting your children. This includes all decisions about health, education and welfare of your children.
Joint custody means that both parents have joint-decision making responsibility for the children. Both parents have an equal right to be involved in all decisions respecting the children, including decisions about the children’s school, where the children live, health and medical decisions, and sports activities in which the children are involved.
Even if you have joint custody of your children, it must still be decided where the children will live on a regular basis. Often a joint custody order also states that the primary residence of the children is awarded to one particular parent.
Joint custody does not necessarily mean that the children live for half of the time with one parent and half of the time with the other parent. Joint custody only means equal decision-making powers about the important issues in the lives of the children.
Parents can agree that the children spend half of the time with one parent and the other half of the time with another parent; however, joint custody only refers to equal decision-making powers about the important issues in the lives of the children.
When a Parent Will Not Get Joint Custody of Their Children
There is a big issue about whether a court will order joint custody of children. The court will look at whether each parent accepts that the other parent is a fit parent to have custody of the children. The other factor that the court will examine is whether each parent can co-operate with the other parent.
Joint custody is only appropriate where the parents are able to co-operate and communicate effectively in the best interests of the children. Courts have generally been reluctant to order joint custody where parents are unwilling to set aside their differences and work together to raise their children.
The Ontario Court of Appeal in a recent case gave considerable guidance about the issue of joint custody of children. In this particular case, the husband and wife were only married for two and a half years. It was a really difficult and violent marriage. They only had one child who was only 3 months old when the husband and wife separated.
The father left the matrimonial home after he was charged with uttering a death threat to the mother. The father never returned to the matrimonial home and attempts at counselling were unsuccessful.
The father sought a form of joint parenting, known as parallel parenting. Parallel parenting means that the parents have equal status and exercise the rights and responsibilities associated with custody independently of the other.
The mother opposed the father’s request for joint custody of the child. She argued that the parties could not communicate without screaming at each other. She led evidence at the trial about the “uncontrollable” foul language exchanged between the parties at the marriage counsellor’s office. She introduced evidence about a screaming incident that was witnessed by a neighbour when the husband came to pick up the child at the home of the wife’s parents where the wife had returned to live.
The trial judge had ordered joint custody of the child. She stressed that the wife had acknowledged that the husband was a good father to the child.
The Ontario Court of Appeal set aside the trial judge’s order for joint custody. The Ontario Court of Appeal stressed that there must be evidence that the parents can communicate with each other about all aspects of the child’s life and well-being. The Ontario Court of Appeal explained that a husband and wife should not be ordered to have joint custody on the basis of the belief that they can get along at some point in the future.
There must be “real world” evidence that the husband and wife have been able to co-operate and communicate effectively previously and currently to justify joint custody. There was no such evidence in this case. As a result of this lack of evidence and no evidence of a parenting plan from the husband, the Ontario Court of Appeal awarded sole custody of the child to the mother.
The Ontario Court of Appeal clearly stated:
The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.
The bottom line is that a husband or wife must have solid evidence that the parents have been able to get along in the past and today to get a joint custody order. The Ontario Court of Appeal also pointed out that the husband should have provided evidence about a practical plan for the child that he proposed to make when he had the child and the benefits to the child of such evidence.
What is “Parallel Parenting?”
However, the Ontario Court of Appeal clearly stressed that one spouse cannot prevent a joint custody order by simply arguing that the other spouse cannot communicate effectively or get along with him or her about the child’s best interests.
Joint custody does not necessarily mean that the children actually live or reside half of the time with one parent and half of the time with the other parent. However, courts are definitely considering equal sharing of time of the children in the appropriate circumstances when the husband and wife can co-operate.
In a recent case, the husband and wife first lived together for five years and then they were married for three years when they separated. The husband and wife had one child who was four and a half years old at the time of separation. Both parents worked. Each parent had sufficiently flexible hours of work to be able to spend considerable time with their son.
The trial judge ordered joint custody in the parallel parenting mode. The parallel parenting mode means that the child lives with each parent about half of the time. The trial judge ordered joint custody in this format since the husband and wife were able to work together for the best interests of their young son despite a pattern of considerable conflict between the parents, especially over how best to raise their son.
The trial judge gave an excellent description of how parents must communicate effectively and get along to justify a joint custody order with parallel parenting:
Jacob [the four and a half year old son of the parents] has lived in the same house with his parents each of whom has an abiding motivation to contribute to his care and well being. It is beyond question that each parent loves Jacob.
At his age, his preference was not in issue. Although the marriage has failed, from Jacob’s perspective the home environment was stable thanks to the combined efforts of the parents. Each parent offers and has the ability to provide supervision, guidance, education, the necessaries of life and for such needs as may arise. The proposed plans for Jacob’s care and upbringing are similar, each in the early stages involving parental care supplemented by family or commercial care providers. Both parents are stable. Both are the biological parents.
Each has demonstrated through their months of living separately in the same house that they are mature. In that unquestionably difficult circumstance, they were able to maintain stability for Jacob through their personal difficulties.
Both parents are well on the plus side of competence. They are genuinely committed to Jacob’s well-being and are capable of operating at a level above their grievances. It is beyond doubt that they are capable of carrying out a parallel parenting plan in Jacob’s best interest.
When Joint Custody Works in Ontario Child Custody Cases
The wife challenged the trial judge’s decision to award joint custody with a parallel parenting format. She wanted an order for sole custody of her son. She argued that a joint custody order was not appropriate in this case because the parents were continually in conflict over how to best raise their son and could neither co-operate nor communicate with each other on his upbringing.
The Ontario Court of Appeal agreed with the trial judge that joint custody with a parallel parenting format was appropriate in this case. The Ontario Court of Appeal made this decision since the parents had largely co-operated on major decisions affecting their son.
The Court of Appeal affirmed the principle that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching an agreement on the child’s upbringing.
The Court of Appeal explained that the son had done very well under the joint parenting regime since the two years that had passed from the date of the trial judge’s decision.
What happens when the parents cannot agree on an important issue affecting a child in a parallel parenting arrangement? In this situation, the court will order that, in the case of conflict on a major matter affecting a child’s life or well-being, such as health care, religious upbringing, and extracurricular activities, one parent will have the final say or decision on the disputed issue.
If the court finds that it has the right combination of thoughtful mature parents before the court who understand what is involved in a joint custody arrangement and both parents are willing to try a joint custody arrangement, the court will feel encouraged to go ahead with a joint custody order.
Why Co-operation Between Parents is So Important
For Joint Custody of Children
If the court, on the other hand, finds that the parents are not willing to work together and co-operate to make decisions about the children on a joint basis, the court will not impose joint custody. The court will not impose joint custody in these circumstances since it is not likely to work and the price to be paid if joint custody does not work is too high to justify taking the risk of ordering joint custody.
Generally, the court will not impose joint custody on a parent who does not want joint custody.
If you want joint custody of your children, there must be a high degree of co-operation between you and the other parent.
It would be very difficult for your children to be involved with joint custody if the parents cannot co-operate. There will be constant friction or tension between the parents about taking the children to their activities, hobbies and sports. There will be constant friction about the children staying at one parent’s home or the other parent’s home and the list goes on and on respecting areas of serious tension between the parties.
If you want joint custody, you should also have a history of serious involvement with raising your children. If you only see your children on a sporadic basis and you were not involved with your children on a regular basis during your relationship with your spouse, it is unlikely that you will get an order for joint custody.
The Best Solution to Your Child Custody Issues
Are you beginning to see how complicated the issue of child custody can get?
Most people know you need the help of an experienced family lawyer to help you protect your legal rights in dealing with your children. What could be more important than making sure you get the right arrangements for your children in terms of where they live and how often each parent has the children with them?
Put another way, your best chance to get reasonable custody and living arrangements for your children is with the assistance of a respected family lawyer.
After you come to your initial consultation with Thomas O’Malley, an experienced family law and divorce lawyer, you will know the best way to settle the critical issue of custody of your children.
Call Thomas O’Malley today at (905) 434-8837 to get child custody arrangement that make sense for your family. Don’t put it off.