Fine & Associates Professional Corporation
Toronto Child Custody Lawyer
A court will grant a parent custody of a child based on the “best interests of the Child.” A Toronto child custody lawyer can tell you that there are numerous factors that the court considers when determining the “best interests of the Child.” The basic provisions regarding child custody rights are set out in s.20 of the Children’s Law Reform Act (CLRA). The CLRA provides as follows:
Provisions Regarding Child Custody Rights
- Except as otherwise provided in this Part, the father and mother of a child are equally entitled to custody of a child.
- A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the Child.
- Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.
- Where the parents of a child live separate and apart and the child lives with one of them with the Consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement to custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides.”
A parent who has child custody in Toronto, has the right to make all major decisions with respect to the health, education and welfare of a Child. The “access parent” has no right to make such decisions for the Child, but may apply to a court of competent jurisdiction if he/she is of the opinion that “custodial parent” is not acting in the best interests of the Child.
Joint Child Custody in Toronto
Many people are uncertain about the term “joint custody.” In a Joint Custody arrangement, it is implied that both parties have an equal say in the health, education and welfare of the Child. However, a child will usually have a “primary residence” with one of the parents. In the event of a dispute concerning a decision with respect to the Child, the parties may agree to a “Dispute Resolution” mechanism. They may agree to Mediation/Arbitration, or that one party’s decision is binding (in which case the arrangement is really a “sole custody“ situation as one parent has final decision making), or a mutually agreed upon third party can assist the parties in resolving the issue, or either party can apply to a court for the necessary relief.
Shared Child Custody in Toronto
“Shared custody” is usually when both parents equally care for the Child; they each have the right to make all decisions with respect to the health, education and welfare of the Child. The Child may live with one parent for one week or several days and then with the other parent for the same duration of time. It is up to the parties to negotiate an agreement that is satisfactory to the parties and in the best interests of the Child. Some parents try to care for the Child for more than 40% of the time, based on the belief that it will be deemed that they have “shared custody” and will not have to pay child support to their spouse.
A recent Supreme Court of Canada case has held that just because a parent cares for a child more than 40% of the time does not necessarily mean that they have a reduced support obligation. The court held that a complicated formula must be used in order to determine if it is justified to reduce the child support obligation. Each case must be examined on its merits. It is necessary to consult with a Lawyer in order to determine if there are grounds to reduce your support obligation.
Toronto Parenting Plans
Recently there has been a trend towards “Parenting Plans.” In a Parenting Plan, the parties enter into an Agreement which specifies exactly what obligations each parent has, when they are caring for the Child, and how they are going to raise the Child. There is no mention of the terms “custody” or “access” in the Agreement, which some people believe are “ownership” terms as neither parent “owns” their child. A Parenting Plan is possible if the parties are amicable.