During a divorce or separation, there are a lot of decisions and compromises to be made. However, one of the most challenging decisions is that concerning child custody. This involves deciding who lives with the child, who gets full custody and what happens if the parents don’t agree, among more concerns.
In this article, we discuss everything you need to know about child custody in Ontario, including what is child custody and access, types of child custody, father’s and mother’s rights, how to get child custody in Ontario and how to calculate child custody payments among more.
What Is Child Custody?
Child custody is the control, maintenance and care of a child. Generally, children have the right to have a relationship with both of their parents. However, when parents go through a divorce or separation, they have to decide who gets full custody of the child or shares it. If there’s no dispute, the court tends to give custody to the spouse who asks for it.
When both parents want custody of the child, the court has to decide what’s best for the child. At this point, a family lawyer can come in handy to help you navigate through the process as well as keep communications between you and your ex-spouse civil.
The person who gets custody handles and makes significant decisions on behalf of the child.
What Is Access?
Having access means that you have a right to visit your child. This applies to the spouse who doesn’t get custody of the child. You have a right to information about your child’s education, health and well-being.
The access order may outline the dates and places you’re allowed to visit your child and any other conditions concerning visiting your child.
Child Custody Age and Rules in Ontario
As per Ontario laws, parents should have shared custody of their children. This is because both the father and mother have a role to play in the development of a child. However, Child custody cases can be complicated, especially when you and your spouse cannot agree.
When there’s a dispute, a child custody lawyer can help you through the process to ensure the court makes a ruling that’s favourable to you. In some cases, the child can decide whom they want to live with, making it easy for the court to decide. However, only children above the majority age of 18 can make such a decision.
If you don’t get custody, you can request an access order, allowing you to visit and spend time with your child. Making advance arrangements such as who spends time with the child during the holidays can help your child avoid the negative impacts of a separation or a divorce. Moreover, when making decisions concerning your children, it’s best that you make one that’s favourable and in their best interest.
In determining what’s best for the child, the court may put the following factors into consideration:
- The child’s needs depending on the child’s stage of development and age
- The strength and nature of the relationship between the child and each of the parent
- The willingness to support the relationship of the child with the other parent
- Child’s preference, keeping in mind the child’s age
- Ability and willingness to meet the child’s needs
- Any form of family violence and how it can impact the child
- The willingness of both parents to cooperate in issues concerning the child’s well-being
Types of Child Custody in Ontario
There are different types of child custody in Ontario. The main types include:
Sole custody allows one parent to permanently live with their child. If you get sole custody, you have the right to determine all significant decisions in your child’s life regardless of whether the other parent agrees or not. The other parent can access the child at your discretion or if the court grants the access order.
Even after the parent with sole custody dies or becomes incapacitated, it’s not automatic that the other parent receives custody. As the sole custodian, you can decide who gets your child custody after you die for at least 90 days. After that, the person you chose and the other partner can apply to the court to fight for custody.
Joint child custody means that you and your partner have equal rights to the child. They both work together for the child’s benefit, sharing responsibilities of making significant decisions and raising the children.
Note that joint custody doesn’t mean that the children must reside on both parents’ premises equally. The arrangements vary depending on what’s best for the child. You can have your home as the primary residence, while the other parent’s home serves as a secondary residence, where the child can visit on holidays and weekends.
If you get shared custody, you have equal rights to the child as the other parent. It’s almost the same as joint custody, in that you share responsibilities of raising and making decisions for the child. However, this kind of custody gets granted when one parent spends most of their time far from home, one parent is injured or ill, unable to take care of the child and one parent is more monetarily stable than the other.
Split custody gets granted when you have more than one child. One child may stay with you, while the other stays with the other parent. That means that each child permanently lives with their respective parent. However, you can have a rotating schedule to ensure each child spends time with the other parent.
Therefore, if you have split custodianship, you may have shared legal custody of the two children but physical child custody of only one. This kind of custody can be complicated and frustrating to the children. Therefore, both parents must show the court that this arrangement is the best option for their children.
Between the Father and the Mother, Who Is More Likely To Get Child Custody?
Historically, women were more entitled to getting child custody than fathers since they were, in most cases, the primary caregivers. However, today most women work away from home just like the fathers. This means that no parent’s entitled to getting child custody in Ontario. If you want to get custody, it’s best that you contact a qualified and experienced custody lawyer.
Is There a Difference Between Married and Unmarried Couples When Fighting for Child Support?
If you’re married, there’s no dispute on child support. However, if you divorce or separate, you may have to decide privately or through the court on who gets child custody.
On the other hand, if you’re unmarried and living together, child custody may not also be an issue. However, if you separate, the father has to petition the court to get custody. Also, if you’re not living together but have a child together, the father can still petition for custody.
Note that the father can only get custody if paternity gets established. Otherwise, the unmarried mother gets sole custody of the child. So, an unmarried man has the same child custody rights as the married couple, as long as he gets a paternity test done.
How To Calculate Child Custody Payments in Ontario
If you agree with the other parent, you can quickly decide on the child custody payments without following the child support guidelines. However, if there’s a dispute, the court may have to use the child support guidelines to determine the payments. An Ontario child support calculator can come in handy in such cases.
The child support guidelines are generally in two categories: the table amount and the extraordinary expenses. The table amount indicates the basic monthly amount you’ll have to contribute as child custody payments to cater for clothes, school supplies and food, among other basic needs.
The table amount gets determined based on your gross annual income and the number of children you have to support. Note that gross annual income is the income you get before you pay taxes and other deductions.
For the extraordinary expense, you, as the custodian, must prove to the court that the cost is necessary for the child. For example, the child was used to spending a certain expense as part of family traditions or patterns. Also, the expense has to be reasonable, in that the parent can afford it.
Examples of the special expenses include:
- Part of dental and medical insurance premiums that the other parent pays
- Daycare fees that allow the parent with custody to go to work
- Education-related costs such as private school fees and tutors
- Payments to cover extracurricular activities such as swimming classes. Note that these expenses must be reasonable
Tips To Help You Get Child Custody in Ontario
Child custody cases can be pretty frustrating yet very important. It’s crucial that you understand that winning a child custody case means getting a settlement that’s in the best interest of your child.
Here are a few tips to help you get child custody in Ontario:
Focus on What’s Best for Your Child
A divorce or separation can take a toll on everyone, including the children. It would be best if you focused on what’s best for them instead of trying to win. Children need emotional support and reassurance that they’ll still get the love and care they received from their parents even with the separation.
Cooperate To Avoid Animosity
One of the challenges with custody cases is that couples take this as a chance to take out their frustrations on each other instead of focusing on the children. When this occurs, children get stressed and frustrated.
It’s best that you decide on a settlement out of court rather than going to court. That way, you can have more control over what’s best for your child. If you cannot agree, you could hire a family lawyer or mediation services to help you reach an amicable agreement.
Hire an Experienced Child Custody Attorney
When going through a divorce or separation, it’s best that you hire an experienced lawyer in custody cases to guide you through the process. An experienced lawyer has had a chance to work with many couples going through the same, enough to know how to help your case.
Having the correct information can increase your chances of winning a custody case and protect you from making costly mistakes.
For more information on child custody, feel free to contact Minhas Lawyers to get some of the best child custody lawyers in Ontario.
Minhas Lawyers LLP is a multi-practice law firm based in Mississauga. We advise and represent clients across various segments and practice areas.
Follow Us On
Monday – Friday:
9:00 am to 6:00 pm
Saturday - Sunday:
Book Appointments Only
Phone and Fax