| May 15, 2008

Legalese - May 15, 2008

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Legalese - May 15, 2008 Who Gets the Kids?Susan Irwin, Executive Director/Lawyer, Rural Legal Services

George and Lois are not getting along and have decided to separate. The couple have three children aged 9, 5 and 3 years, which, of course raises the million dollar question: “Who gets the kids?”

Ontario’s Children’s Law Reform Act provides that “The father and mother of a child are equally entitled to custody of the child.” George and Lois, as the natural parents of their three children, must make plans about their children’s daily lives and where their children will live now that George and Lois will not be living together. They can do this with or without the help of lawyers but if they can’t agree, either one of them can apply to the Court for an Order for custody or access.

As well, parents are not the only persons who can apply for custody and access. Under the Children’s Law Reform Act, “a parent of a child or any other person may apply to a Court for an order respecting custody of or access to the child.” Extended family members such as grandparents, step-parents or aunts and uncles can apply to the Court. No matter who applies, the court must determine the merits of a custody or access application based on the “best interests” of the child.

In determining what is in the best interests of a child the Court considers:

Has there been any abuse in the household?

How loving is the relationship, or how strong are the emotional ties, between the parent and child, or the applicant and child?

How long has the child lived in a stable environment?

What plans does each parent, or applicant, have for the child’s care and upbringing?

How willing and able is the parent, or applicant, to provide the child with guidance, and education, the necessaries of life and any special needs?

How well can each applicant parent?

What does the child want (if that can be ascertained)?

What is the relationship by blood or through an adoption order between the child and each applicant?

The Court also looks at what care or living arrangements already exist. For example, if in the case of Lois and George, Lois always provided most of the child care and upon separation continued to be the primary caregiver for the children, the Court would likely not change the status quo if the living arrangement was working well. The primary residence of the children would be with Lois.

However, just because the three children spend most of their time with Lois does not mean that George wouldn’t be granted custody of his children. Custody does not mean where a child lives. Custody means the legal right and responsibility to make decisions about a child’s life.

The Court can order joint custody or sole custody. If Lois and George are awarded joint custody, both Lois and George should be involved in making any major decisions about their three children. Alternatively, if custody is given to only one parent such as Lois, then Lois, as the sole custodial parent, would have the right to decide everything by herself about her children’s care and activities, including education, health care and religious instruction. In making such decisions, Lois would be expected to exercise her parental rights and responsibilities in the best interests of her children.

Where one parent has sole custody, the other parent is usually given the right to spend time with the children, to make inquiries and to be given information about their health, education and welfare. This is known as access. If Lois were given sole custody of the children, George would likely be entitled to access.

It is generally accepted by the Court that it is in a child’s best interests to have as much contact as possible with both parents. Only in exceptional circumstances (such as where a child has been harmed by a parent) will a Court deny access.

Access and custody issues are often highly contentious and emotionally charged. For parents to act in the best interests of their children it is important for them to be informed about their legal responsibilities as well as their rights.

Information on a variety of family law topics is available without charge from area Family Law Information Centres (FLIC) and also from Rural Legal Services. In Kingston the FLIC is located in the Family Court building at 469 Montreal Street, 613-548-6789. In Napanee, call 613-354-3845. Family Law information is also available on the World Wide Web at www.attorneygeneral.jus.gov.on.ca/english/family

Legalese is a column of general information and opinion on legal topics by the lawyers of Rural Legal Services, Box 359, Sharbot Lake, ON, K0H2P0, 613-279-3252, or 1-888-777-8916. This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.

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