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| If you and your spouse are parents, children related issues of custody and access will likely be the most difficult ones to resolve. However, more than 98% of custody issues that go to court are settled by the parents before trial, often with the help of various professionals like the lawyers, counselors, mediators, or a representative of the Office of the Children’s Lawyer. If you and your spouse keep your focus on what’s in the best interests of the Children, you’ll increase your chances of resolving these issues without a trial and with minimal disruption in the children’s lives. |
| What is Custody? |
| The term “custody” means control of the decision-making for issues related to the children, such as the care, upbringing, education, and welfare of the children. With whom a child lives is only one component of such decisions. Other components include health care, travel, religion, education, as well as day-to-day decisions. Types of overall custody can be viewed as being along a spectrum, with sole custody to one parent being at one end and sole custody to the other parent at the other end. This spectrum can apply to each component or category of decisions related to the children. The following are common types of overall custody arrangements: |
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1. Sole Custody. In this situation, one parent is entrusted with sole decision-making related to the children. The children may reside with one or both parents, but the one parent makes the ultimate decisions and can exclude the other parent from the process (unless there is a requirement to consult the other parent before deciding).
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| 2. Joint Custody. This is the type of custody that exists prior to separation and that continues until there is a court Order or agreement of you and your spouse. Typically the children live primarily with one parent, but both parents have equal decision-making powers about the children’s issues. There is often a specified mechanism for resolving any disagreements that may arise on these issues. Courts rarely order joint custody in high conflict situations or when one of the parents strongly objects to it.
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| 3. Shared Custody. This refers to the children’s residence and occurs when the children live with each parent at least 40% of the time. Shared custody usually exists only when there is a joint custody situation and when the parents’ homes are relatively close to one another (e.g. in the same school catchment, near the same friends of the children, etc.). The children’s residence may change weekly or during each week subject to what makes the most sense. Shared custody can substantially affect a parent’s rights or obligations related to Child Support. |
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4. Split Custody. These situations involve more than one child, where each parent has custody (or residence) of one or more of the children. There is a general tendency to keep siblings together, subject to the children’s best interests.Your entitlement to custody may be suspended until a separation agreement or court orders otherwise if your spouse and child live separate and apart from you with your consent, implied consent, or acquiescence (see section 20(4) of the Children’s Law Reform Act).Top
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| How is Custody Determined? |
| Many parents are able to resolve custody issues between themselves. If the issue of custody is left for a judge to decide, the judge will decide the issue based on what is in the best interests of the children. Although the “best interests of the child” test has been criticized as being too vague, it is still employed as a primary guideline in determining custody and access issues.
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Best Interests Section 24(2) of the Children’s Law Reform Actspecifically legislates that the court shall consider all of the children’s needs and circumstances including the following:
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- the love, affection and emotional ties between the child and,
- each person entitled to or claiming custody of or access to the child,
- other members of the child’s family who reside with the child, and
- persons involved in the child’s care and upbringing;
- the child’s views and preferences, if they can be reasonably ascertained;
- the length of time the child has lived in a stable home environment;
- the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
- any plans proposed for the child’s care and upbringing;
- the permanence and stability of the family unit with which it is proposed that the child will live;
- the ability of each person applying for custody of or access to the child to act as a parent; and
- the relationship by blood or through an adoption order between the child and each person who is a party to the application.
In assessing the children’s best interests, the courts will look at many factors before making a final determination. The weight given to any factor will vary in each case, but courts tend to focus on the primary caregiver and the status quo. Some of the factors looked at are the following:
Primary Caregiver. The Courts will look to see which parent has been primarily responsible for child-rearing activities (e.g. all activities related to the care and welfare of the children, including meals, education, health care, etc.). In many instances, the court will award some form of custody to the children’s primary caregiver..
Status Quo. The courts will look at what routine has been established regarding decision-making for the children. If that routine has worked and the children have flourished, the court tends to award a form of custody to the parent who has been primarily responsible for taking care of the children at the time of separation, thereby maintaining the status quo. Courts tend to do this in order to minimize the disruption to the children, given that disruption is not in their best interests.
Abuse. Section 24(4) of the Children’s Law Reform Act states the courts shall consider whether a person has at any time committed violence or abuse against his or her spouse, a member of the household, or any child in assessing a person’s ability to act as a parent. Abuse and the risk of abuse is a significant factor in the determination of the children’s best interests. Many judges accept that spousal abuse is relevant to the decision of who should have custody, and that spousal abuse is symptomatic of other relationship problems that could put a child at risk.
Conduct/Life Style of Parent. The conduct or misconduct of a parent is only relevant in custody cases insofar as it has an affect on that person’s ability to recognize and meet a child’s needs (see Section 16(6) of the Divorce Act and Section 24(3) of the Children’s Law Reform Act). However, a party who makes wild and unsubstantiated claims against their spouse should not expect the court to provide them with any indulgences
Interference with Parent/Child Relationship. If one parent promotes contact with the other while the other discourages access, this will usually be a relevant consideration for courts in a custody case. Judges often condemn a parent’s attempt to undermine the other parent’s relationship with any of the children.
Parent’s Health. If a parent’s health affects their ability to meet the needs of any of their children, the court may take this into account. This includes a parent’s physical or emotional limitations.
Children’s Age. To determine a child’s best interests, the needs of the child are assessed, and those needs are often determined by the child’s developmental stage, which is dictated by the child’s age. Thus, a child’s age and level of maturity is an important consideration in determining the child’s best interests. These also are taken into account in determining what effect to give to a child’s views about where the child wants to live. At some point, a child reaches an age where it is no longer appropriate for a judge to make a custody order. That particular age varies in each case.
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| Testimonials |
Thank you so much for taking my case. When I first came to you, I was in such a deep hole I thought I would never get out. Other lawyers refused to take my case, but you agreed to step in and got me an order for support when others said it wasn’t possible. I was beyond shocked when you were able to get me the settlement within a few months that I had been after for years. I can’t thank you enough for all your great work.
I wanted to send this card to thank you for all your hard work during my divorce. You were always there for me (only a call or email away), and you gave me the confidence to fight for my rights and for my children. We all thank you for getting us the closure we wanted and for helping us set the stage for bright futures.
Initially, I was concerned that hiring a lawyer would only increase the stress and expense of my divorce. However, you put me at ease right from the start with your frank approach and “telling it like it is”. You were always accessible and always came up with ideas to help resolve things instead of creating more conflict whenever roadblocks appeared. I wanted to thank you for candour, the results, and for helping me get on with my new life.
Mr. Zeidman, in the three years since my separation, I had two other lawyers, neither of whom was able to make much progress with my custody and property division case. But when you agreed to be my lawyer, things changed. By shifting the focus on my children and their best interests, you were able to get me sole custody, support, and a fair equalization payment shortly followed. You knew when to fight, what to fight about, and how to persuade my husband, his lawyer and the judges – and throughout all of it, you were always encouraging and supportive. I am forever grateful for your services.
Mr. Zeidman, you and your staff were professional and extremely supportive to me throughout my custody battle for my children. Thank you for helping me get my children back and for being so kind the whole time.
I was scared to go to court, and I was prepared to settle for almost anything just to avoid it. You told me that my husband knew that, and he was using that to try to get me to agree to a “lowball” offer. You explained my options, their advantages and disadvantages, and you helped me get over my fear of court by demystifying the process and giving me confidence in my case. When we went to the Case Conference and I saw how the judge agreed with your assessment, my confidence grew even more. Because of you, a settlement was reached that gave me and my children much more than I expected was possible. Thank you for your kind words and your efforts. I would recommend you to anyone who is going through a divorce, and I have already referred two of my friends to your office.
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