In Short:
- Under Ontario law, the courts are not concerned about the “parental rights.” They are concerned about the children’s rights, and the final decision is always taken in the children’s best interests.
- Courts generally take the position that children benefit from as much time as possible with both parents, as long as this is consistent with the children’s best interests.
- The law has moved away from terms like “custody” and “access” and now uses “decision-making responsibility” and “parenting time” to emphasize the importance of children’s best interests.
- The courts prefer to maintain stability in the children’s current educational and living arrangements without uprooting them for the sake of their separated parents.
In a divorce, one of the heavily contested issues tends to be about the children. Under Ontario law, all such matters must be taken in the best interests of the children. The disputes between the parents do not come into the picture. Decisions such as who gets custody of the children, how much each parent should contribute to child support, and the final decision on their education and accommodation arrangements will all be settled solely in the best interests of the children. This is why you need to have an experienced divorce lawyer in your corner to protect your parental rights and safeguard the interests of your children from the very beginning.
Shift in focus:
It was in 2021 that the Canadian government updated the Divorce Act, wherein terms like ‘child custody’ and ‘child access’ were replaced with ‘decision-making responsibility’ and ‘parenting time.’ The focus thus shifted to arriving at a parenting arrangement in the best interests of the child without taking into consideration the rights of or the disputes between the parents.
Decision-Making Responsibility
This refers to the parenting arrangement in which the decision-making responsibility over the child’s well-being is allocated between the parents. This will include decisions concerning the child’s education, healthcare, and extracurricular activities, as well as those involving their religious, linguistic, and cultural identity.
- Joint decision-making responsibility: In all important matters concerning the child, both parents consult with each other and come to a decision in the best interests of the child.
- Sole decision-making responsibility: Here, such decision-making responsibilities are all delegated to one parent, typically the one with whom the child is staying.
- Split decision-making responsibility: Here, some of the decision-making responsibilities are delegated to one parent, while the remaining ones are delegated to the other.
Parenting Time:
As already mentioned, the law considers it to be in the children’s best interests for them to spend as much time as possible with both parents. However, the final parenting arrangement will depend on the particular circumstances of the case.
- Shared Parenting Time: The court would require the child to spend at least 40% of the time with each parent.
- Split Parenting Time: This is especially the case when multiple children are involved. The parenting time might be split among the children, with one child living predominantly with one parent and the other child with the other parent. For example, the younger school-going child might live with the mother located near the school, while the elder sibling stays with the father.
- Supervised Parenting Time: The court will order supervised parenting time if the parent has a history of violent behaviour or drug abuse. The parents themselves might agree to such an arrangement if the divorce were finalized through negotiations rather than going to court. On the other hand, if this were mandated by the court, the appointed supervisor is likely to be one of the following.
- A friend or a relative whom both parents trust and agree upon.
- A certified social worker or counsellor.
- If the court ordered that the visit should happen at a government-funded Supervised Access Centre, one of the trained staff there will fulfill this role.
- No parenting time: If there is any record of violence or abuse at the hands of one of the parents, the court will obviously deny parenting time completely to that parent for the sake of the child’s safety.
Child Support:
A child is legally entitled to child support from the parents, at least until they turn 18 or even beyond in some cases. Neither parent can waive child support in their marriage contract or separation agreement. The parents may negotiate the terms of the payment, but the courts may overrule them in the final order in the best interests of the child.- Basic child support payment: The Federal Child Support Guidelines provide the basis for calculating the child support payment based on the following:
- Gross income of the parent
- Number of children they have to support
- Cost of living
- Parenting arrangement
- Daycare or babysitter expenses.
- Extracurricular activities such as arts or sports programs.
- Child’s extraordinary needs, such as private tutoring or special needs schooling.
- Post-secondary education, covering the tuition fees, books, stationery, and any other associated expenses.
- Medical and dental care insurance premiums.
- Any healthcare expenses not reimbursed by insurance coverage.
Parenting Plan:
It is a document outlining the parenting schedule, division of holidays, school choice, travel, and child support, thus reducing the chance of any conflict between the parents. Ideally, all matters concerning the care and well-being of the child must be covered in this document. Both parents are expected to stick to this agreement, and if the circumstances change, they may renegotiate later for any modifications. While a parenting plan is not mandatory, it is highly recommended in a contested divorce.
How do the courts decide in the best interests of the child?
Maintain stability: The courts prefer to maintain stability in the children’s current educational and living arrangements without uprooting them for the sake of their separated parents. If possible, the child should continue to go to the same school and stay in the same residence as before.
Voice of the Child report: If it is felt that the child is old and mature enough, the court will engage a certified counsellor to submit a report on the preferences, opinions, and feelings of the child on the matter. However, this does not mean that the court’s decision will be based entirely on the opinion of the child; rather, it will be one of the factors taken into consideration.
Special needs of the child, if any: If there are any special medical or educational needs of the child, the court will give priority to these.
Safety considerations: If one of the parents has a history of violence or drug use, the courts will intervene to ensure the safety of the child under such circumstances.
Primary caregiver: If one of the parents has been the primary caregiver throughout the children’s life so far, this factor will also influence the court’s decision.
Key points to remember
- It is always advisable to settle these matters amicably through negotiations rather than letting the children witness the prolonged legal battles between the parents.
- Remember that the courts would ultimately decide in the best interests of the children. In other words, the final court order could be unfair to one or even both of the parents.
- As already mentioned, the courts will be reluctant to change the current educational and living arrangements of the children. So, if you are proposing to move them, you must convince the court that this is in their best interests.
How can our family lawyer help you in such cases?
At Nanda & Associate Lawyers, you can rely on our experienced divorce lawyers to handle your case with the care and attention it deserves. Our lawyers will negotiate on your behalf and settle such delicate family matters without going to court. We will also represent you in court, if necessary, and fight to ensure that your parental rights and financial interests are protected throughout.
Reach out to our family law team today for a consultation.
