Child Custody

"What does child custody mean?"
If you have custody of your children, that means that you have the right to make the important decisions in your children’s lives, such as decisions regarding education, religion and medical treatment.

"My spouse and I are still living together. Who has child custody?"
Both parents have an equal right to custody of their children until a court orders otherwise.

"What are the different types of child custody?"

  • SOLE CUSTODY – This is when one parent has custody of the children.
  • JOINT CUSTODY – Joint custody is where both parents have custody. Courts will normally only award this where the parents are able to cooperate on matters involving parenting.
    This is also known as joint legal custody.
  • SHARED CUSTODY – This is when the both parents have joint custody of the children, and both parents spend at least 40% of the time with their children.
    This is also known as joint physical custody.
  • SPLIT CUSTODY – This is when one parent has custody of some of the children, and the other parent has custody of the remaining children.
    This type of custody rarely occurs, as courts are reluctant to split children up.

"What about access (visitation)?"
When one parent is awarded custody of the children, the other parent is normally granted the right of access (visitation). Unless the court has concerns about a person’s parenting ability, the court will generally award the non-custodial parent as much access (visitation) as possible.

"What is supervised access (visitation)?"
If the court has concerns about a person’s parenting ability, then "supervised access" will be ordered. This is where the access visits occur at a facility where they can be supervised by a social worker. There are many of these throughout Ontario, Canada. Also, supervised access (visitation) may be ordered in cases where a parent has abducted the children before.

"What rights does an access parent have?"
An access parent is entitled to visit and be visited by the children. He or she may also make enquiries and be given information concerning the children’s health, education and welfare.

"What is primary or principal residence?"
This is the home in which the children spend most of their time. So, for instance, there may be an arrangement where there is joint custody of the children, but the children have primary residence with one of the parents.

"Are there any other alternatives?"
Yes. Many parents who are able to communicate about their children choose instead to have a decision-making process. So, for instance, all major decisions about the children’s education must be discussed in advance and agreed to by both parties. If the parties are unable to agree, then the parties go to mediation or binding arbitration about the issue.

"Will my children have to testify in court?"
Normally no. However, in a hotly contested child custody dispute, the judge may want to speak with your children privately in the judge’s office. As well, in Ontario, Canada, the
children may be represented in court by a lawyer appointed by the Office of the Children’s lawyer.

"What if I want to move to another city with my children?"
This is one of the most difficult situations in family law. As with any decision involving children, the court will look at the best interests of your children. In some cases,
it is better for your children to stay in the same city, so they have stability in their lives. In other cases, the children will be better off moving with you to another city.
It all depends on the particular circumstances of your case. Your lawyer can help you evaluate your chances of a court allowing you to move to another city with your children.
Read about the latest child custody move away case.

"Can my child custody and access arrangements be changed?"
Yes. Over time, children’s needs change, your circumstances change and so do your former spouse’s circumstances. What was best for the children at one time may no longer be in your children’s best interests.

"My former spouse has denied me access visits with my children several times, contrary to our court order. What can I do?"
A family lawyer can apply to the court to have your spouse found in contempt of court. If your spouse continues to deny you access to your children, then your spouse may be
fined or in extreme circumstances, jailed. A court may even allow you to have custody of your children if the denial of access is persistent. In these types of cases, it
is important to document everything as it happens.


Bitter Child Custody Battles
Behrendt Law Chambers has represented many parents in bitter child custody battles.

Bitter Child Custody Dispute Over Infant
A client came to Behrendt Law Chambers when his wife left home with their nine-month-old daughter. Communication between him and his wife had broken down completely. His wife
wanted sole custody and was willing to let him see his daughter only three times per week, and then for only two to three hours per visit. Behrendt Law Chambers successfully won joint
custody for his client and access with his daughter three full days per week.

In another dispute, all communication between the parents of a 10 year old and 7 year old broke down. As well, the wife had charged Behrendt Law Chambers’ client with assault. Despite
this, Behrendt Law Chambers obtained joint custody for their client. As well, the mother wanted to move the children from a French-language school to an English-language school. Behrendt Law Chambers ensured that the children were able to continue in the same French-language school they had been in.

Read the relevant section of the Canada Divorce Act.
Read the relevant section of the Children’s Law Reform Act.
Find out more about the best interests of the child.

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