Tuesday, October 18, 2011

Everyone Doesn't Have to Lose in Family Law: Child Custody and Access

Photo Credit: Glen Campbell. 
If people have been unhappy about lawyers and the courts for a long time, they've been especially unhappy about outcomes in family law cases - though for only the last few decades, since prior to that time family law was a niche practice in a BNFD world - before no fault divorce. 

This dissatisfaction is unfortunate, because the family lawyers are among the more committed members of the profession I know - there isn't a lot of glory in it, the clients often can't afford to pay much, and protracted litigation often leads to lose-lose results. It's also likely the area of legal specialization with the highest lawyer burnout rate - they usually don't quit law completely, they just get out of family law, adding to the already serious shortage of lawyers willing to take on these kinds of cases. 

I practice family law myself at least in part because of the shortage of available lawyers, and because I believe the results are perhaps as crucial to client happiness as any kinds of legal results can be. Because this is a relatively new area of the law, it remains a very dynamic one where courts and legislatures are constantly creating new principles. One set of principles which has stabilized of late involves child custody and access.

Everyone now agrees that the best interests of the child are the key consideration when making decisions about child custody and access. The law throughout Canada on this topic is pretty similar, but what follows focusses especially on Ontario law.

Custody and access can be agreed upon Informally, in a Parenting Plan, in a Separation Agreement, or by Court Order. Choice of means to agreement depends on ability of parents to communicate and the need for future enforceability (the more formal the agreement, the more enforceable it will be). Negotiationmediationarbitration, and collaborative family law are all viable, less expensive, and potentially more effective alternative dispute resolution (ADR) processes to court-based processes.

Having custody means you can generally make decisions about care, education and religious instruction unless agreement or court order says otherwise – but views of non-custodial parent can’t be completely ignored and the non-custodial parent has right to general information about these decisions and welfare of child. Joint or Shared Custody means both parents share decision making – although it may not mean the child spends equal amounts of time living with each parent. Supervised Access can be agreed to or ordered by a court where there are concerns about child safety, parent safety, or child return.

The federal Divorce Act s. 16 considers the best interests of child to be “as determined by reference to the conditions, means, needs and other circumstances of the child.” Courts are prohibited from taking past conduct of a parent into account unless relevant to ability to parent. Sub-section 16(10) promotes maximum contact with each parent. The provincial Children’s Law Reform Act governs where there are no divorce proceedings. It's more explicit than the Divorce Act in defining “best interests,” including the child’s preferencesstability of environment, and abilities of parents.

Courts will often maintain the status quo, so initial informal arrangements concerning custody, access and parenting can become very important factors in the longer term. While a court may order an Assessment of the needs of the child and ability and willingness of the parties, such assessments are time-consuming, expensive, intrusive and will not finally determine custody and access issues (which are left to the court to decide).

A court order may also be sought to involve the Office of the Children’s Lawyer, either to have a government-funded lawyer appointed to represent the interests of the child (unlikely if the children are very young and can’t express preferences), or to have a social worker assigned to conduct a Clinical Investigation which will be similar to a Custody and Access Assessment except be funded by the government – however the Office of the Children’s Lawyer can decline a file. 

While it's hard to say whether people fall to fighting more over money or children when relationships break up, it's certain that disputes over children have the potential for lasting much longer and taking a much greater emotional toll. The legal lessons of custody and access for separating parents are:
  • ideally, be aware of the law of child custody and access before you separate;
  • try to take an objective view of what others will perceive to be in the best interests of the children; 
  • structure your proposed parenting plan around those best interests;
  • don't take an extreme position that forces a court to be the final decision maker about those best interests, instead be proactive in attempting to agree on a plan that is acceptable to both parents;
  • use every ADR tool available to retain some control over the form the final custody and access agreement will take, and to limit your legal fees;
  • it will be expensive, time consuming, and difficult to enforce every detail in a child custody and access agreement through a court - if you run into compliance difficulties, return to those ADR tools and use the courts as a last resort. 


    1. Too bad you weren't around when my mother was divorcing hubby #2!

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