Custody & Access 

Custody, Access & Primary Residence

All issues regarding the children must be determined by what is in their best interests.  Family law is governed by this, first and foremost.

There are two main principles to bear in mind:

1. Children have a right to maintain a relationship with both parents.
2. Parents are legally obligated to provide financial support for their children.

Mahdi Leite Family Law is here to advise and guide you through every step in the most cost-effective and timely manner.

To book a free consultation in Toronto or Mississauga, please call (416) 284-2354 or email us at reception@mlfamilylaw.ca

Custody is a term that is often misunderstood.  Custody only refers to which parent will make significant decisions concerning the child.  However, people often mistake custody to mean the parent with whom the child resides or what is referred to as primary residence.  In legal terms, these are not the same thing as explained further below.

Joint Custody

Ideally, parents will share major decisions regarding the children; this is called joint custody.  It means both parents have input into significant life decisions concerning the children’s education, health and medical care, and activities.  It requires parents to set aside their differences, focus on the children’s best interests, discuss options, and make major decisions together for the children’s benefit.

Sole Custody

When parents have conflicting ideas concerning the children and cannot make reasonable decisions jointly, it may be preferable for one parent to have sole custody.  That means one parent will have final say over major decisions concerning the children.  The other parent remains involved in the children’s lives and may have input, but does not have final say over important decisions.

If a parent has sole custody, then that parent will make all important decisions concerning the child (i.e. health, religion and education) on his or her own.

Mahdi Leite Family Law is here to advise and guide you through every step in the most cost-effective and timely manner.

To book a free consultation in Toronto or Mississauga, please call (416) 284-2354 or email us at reception@mlfamilylaw.ca

Custody and primary residence are two separate legal concepts.  “Primary residence” refers to where the children live most of the time.  The children may live primarily with one parent and have visits (access) or spend time with the other.  Parents may still have joint custody (important decisions made jointly) though the children may live primarily with one parent.

Similarly, spouses can have shared parenting of their children (this is where the children live with both parents), while only one parent has the right to make important decisions concerning the child (sole custody).

Primary Residence

Primary residence is when the child residences mainly with one of the parents.   The non-resident parent may enjoy liberal and generous access to the child, often including alternate weekends.  The non-resident parent may equally share the child’s school holidays.

Shared Parenting

Shared parenting means the children reside with each parent part of the time. The schedule is customized to circumstances which work best for that individual family. Shared parenting very much depends on the parents having similar values and approaches to parenting.
Technically, shared parenting refers to the child residing with both parents equally or the child spending at least 40 per cent of his or her time with each parent. The amount of time a child spends with each parent may also affect the amount of child support to be paid.

Determining whether or not the 40 per cent threshold is reached is itself not simple. Some cases count overnights, while other cases count hours. Some parents are eager to reach the shared parenting threshold in the hopes of reducing or evading child support obligations. Others genuinely believe that it would be best for the child to reside with both parents equally or almost equally.

Family law is an ever-changing area of the law. For example, in early 2018, the government introduced a bill to change references to custody and access. It is the government’s intention to reduce conflict regarding parenting and eliminate terms that are hotly contested. Bill C-78 is titled “An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act.”

Family courts determine parenting pursuant to the Children’s Law Reform Act and Divorce Act, depending on the marital status of the parents at the time of the action. Both legislations set out a similar framework for determining the best interests of the child.

The Divorce Act specifically mentions “Maximum Contact”:

16. ORDER FOR CUSTODY AND ACCESS – (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an Order respecting the custody of or the access to, or the custody of and access to, any or all of the children of the marriage.
…
(10) MAXIMUM CONTACT – In making an Order under this section the Court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

As set out in the Children’s Law Reform Act:

(2) BEST INTERESTS OF CHILD — The court shall consider all the child’s needs and circumstances, including,
(c) the length of time the child has lived in a stable home environment;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;

Herein the conflict regarding primary residence and shared parenting is evident in the subsections of governing legislation. A proponent of shared parenting will cling to one subsection and construe it to her or his benefit, while an advocate of primary residence will focus on another subsection and similarly interpret this section to advance his or her position.

Simply put – whatever your position, barring a deal breaker (i.e. family violence, substance abuse, parental alienation) you will find support for it in the legislation and there will certainly be a case somewhere that backs you – and – regrettably, another case that backs the other side.

In this context of divergent positions, we had Bill C-560 – the aim of which was to amend the Divorce Act to create a rebuttal assumption in favour of shared parenting. Bill C-560 was a Private Member’s Bill. It was defeated in May 2014.

As the law in Ontario stands today – there is no presumption either way – for shared parenting or primary residence.

Mahdi Leite Family Law is here to advise and guide you through every step in the most cost-effective and timely manner.  To book a free consultation in Toronto or Mississauga, please call (416) 284-2354 or email us at reception@MLFamilyLaw.ca

Where there is serious concern of a parent’s ability to care for a child, especially a young child, the parties may choose to or the court may make an order for access to take place under supervision.  Supervision can either be by a person mutually chosen with the consent of both parents or at a Supervised Access Centre.

Supervised Access Centres are operated by a government agency with minimal fees or no fees at all.  These centres are staffed by social workers who are discretely present to observe access.  Supervised Access Centres are often used where there is concern about a parent’s ability to interact with the children or the children are uncomfortable alone with the parent.  In cases where a parent is suffering from an addiction (i.e. drug abuse, alcoholism, substance abuse) or mental illness (i.e. extreme depression, bipolar disorder, schizophrenia) it is often preferable to have access in a Supervised Access Centre.

Ordinarily, Supervised Access Centres are expected to be a short-term solution.   Usually, if access proceeds well at the Supervised Access Centre, it is eventually expanded to unsupervised access.

Mahdi Leite Family Law is here to advise and guide you through every step in the most cost-effective and timely manner.

To book a free consultation in Toronto or Mississauga, please call (416) 284-2354 or email us at reception@mlfamilylaw.ca

Where there is concern about the mental and/or physical safety of a child, the Children’s Aid Society or Children’s Aid Services – (“CAS”) – may become involved.

CAS has tremendous powers. At the extreme end of the spectrum – CAS has the ability to take away a child from his or her parents, and place the child in foster care, and eventually sever the parent’s ties with the child and place that child up for adoption. In such cases, there is always a court action.

At the other – less extreme – end of the spectrum, CAS may investigate an allegation and find the concern of abuse or neglect unfounded and close its file.

In the middle of the spectrum, CAS may offer mediation, or follow a family for some time to ensure that the child’s needs are being met.

Mahdi Leite Family Law is here to advise and guide you through every step in the most cost-effective and timely manner.
To book a free consultation in Toronto or Mississauga, please call (416) 284-2354 or email us at reception@MLFamilyLaw.ca

In the event of dispute between parties as to the optimal parenting or access structure, the court may request the involvement the Office of the Children’s Lawyer (“OCL”).    The Office of the Children’s Lawyer/OCL has discretion as to which cases it will and will not accept.

The Office of the Children’s Lawyer/OCL can appoint a social worker or psychologist to investigate and provide a report to the court.  Alternatively, the Office of the Children’s Lawyer/OCL can appoint a lawyer to represent a child’s wishes in the family law proceedings.  Sometimes, both a social worker and a lawyer are appointed.

As of 2018, the Office of the Children’s Lawyer has been providing Voice of the Child reports to the court.  In such cases, a clinician appointed by the Office of the Children’s Lawyer/OCL interviews the child and provides a report to assist the parties and the judge decide the case.

The Office of the Children’s Lawyer/OCL is funded by the Government of Ontario and its services are free of charge.

Mahdi Leite Family Law is here to advise and guide you through every step in the most cost-effective and timely manner.

To book a free consultation in Toronto or Mississauga, please call (416) 284-2354 or email us at reception@mlfamilylaw.ca

Parties can choose to utilize the services of a parenting coordinator/mediator.  Most parenting coordinators are social workers.  Some are psychologists or lawyers.  The mandate of the parenting coordinator/mediator is to assist the parties in resolving their parenting disputes.

Parties must retain the parenting coordinator/mediator privately and pay for his or her services on their own.  The parenting coordinator/mediator must be selected by mutual agreement.

Retaining a parenting coordinator/mediator is a good idea if the parties are able to come to an agreement outside of court – thus saving themselves legal fees and acrimony.

Mahdi Leite Family Law is here to advise and guide you through every step in the most cost-effective and timely manner.

To book a free consultation in Toronto or Mississauga, please call (416) 284-2354 or email us at reception@mlfamilylaw.ca