What is Custody?

Although most people have heard of the term custody before, they might be surprised to learn that the term is not fully defined in legislation. The Divorce Act provides a limited definition as follows:

“custody” includes care, upbringing and any other incident of custody;

Some Canadian jurisdictions do not use the term custody, and prefer the term guardianship instead.

The Divorce Act applies the maximum contact principle under sections 16(10) and 17(9), and states that children should generally have as much contact with both parents as possible, although courts will always consider the best interests of the children and may restrict contact.

The Supreme Court of Canada provided some background on the shifting views regarding custody in Young v. Young,

34     As has been widely observed by those studying the nature and sources of changes in family institutions, popular notions of parenthood and parenting roles have undergone a profound evolution both in Canada and elsewhere in the world in recent years (see generally M. A. Fineman, The Illusion of Equality: The Rhetoric and Reality of Divorce Reform (1991); L. J. Weitzman, The Divorce Revolution (1985); J. Drakich, “In Whose Best Interests? The Politics of Joint Custody”, in B. Fox, ed., Family Bonds and Gender Divisions: Readings in the Sociology of the Family (1988); C. Smart and S. Sevenhuijsen, Child Custody and the Politics of Gender (1989), and S. B. Boyd, “Women, Men and Relationships with Children: Is Equality Possible?”, in K. Busby, L. Fainstein and H. Penner, eds., Equality Issues in Family Law: Considerations for Test Case Litigation (1990)). One of the central tenets of this new vision is that child care both is no longer and should no longer be exclusively or primarily the preserve of women. Society has largely moved away from the assumptions embodied in the tender years doctrine that women are inherently imbued with characteristics which render them better custodial parents (for a discussion, see D. L. Chambers, “Rethinking the Substantive Rules for Custody Disputes in Divorce” (1984), 83 Mich. L. Rev. 477). Moreover, both economic necessity and the movement toward social and economic equality for women have resulted in an increase in the number of women in the paid workforce. Many people have tended to assume that a natural result of this change would be the concurrent sharing of household and childcare responsibilities with spouses, companions and, of course, fathers. In addition, the increased emphasis on the participation of fathers in the raising of children and financial support after divorce gave rise to claims by fathers and fathers’ rights groups for legislative changes that would entitle them to the benefit of neutral presumptions in custody decisions.

Custody is not considered a right for the benefit of the parent, but rather a duty by the custodial parent to ensure, protect, and promote the best interests of the child. This includes overseeing aspects of day-to-day life and their long-term well-being, and major decisions around education, religion and health.

Professor Julien Payne states in Payne on Divorce,

In Canadian divorce proceedings, case law tends to support the conclusion that, in the absence of directions to the contrary, an order granting “sole custody” to one parent signifies that the custodial parent shall exercise all the powers of the legal guardian of the child. The non-custodial parent with access privileges is thus deprived of the rights and responsibilities that previously vested in that parent as a joint custodian of the child…

 The provisions of the Divorce Act, 1985, and particularly the definitions of “custody” and “accès” in section 2(1), may preclude Canadian courts from reverting to a narrow definition of custody. Pursuant to section 2(1), “‘custody’ includes care, upbringing and any other incident of custody” and “‘accès’ comporte le droit de visite.” The use of the word “includes” in the definition of “custody” implies that the term embraces a wider range of powers than those specifically designated in section 2(1). . . . Consequently, in the absence of an order for shared parenting or a court-ordered division of the incidents of custody, a non-custodial spouse with access privileges would remain a passive bystander who is excluded from the decision-making process in matters relating to the child’s welfare, growth and development. This remains true notwithstanding that section 16(10) of the Divorce Act, 1985 provides that the court shall promote “maximum contact” between the child and the non-custodial parent to the extent that this is consistent with the best interests of the child

Joint custody arrangements can vary tremendously between cases, and is largely subject to the willingness of the parties to make it work. Justice Zucker stated in Moreira v. Garcia Dominguez,

125     From a child’s perspective, joint custody has an inherent appeal. It allows each parent to be actively involved in the child’s life, and to have meaningful input with respect to important decisions. It may help ameliorate a child’s sense of loss, and provide ongoing emotional reassurance that both parents still care – and care equally. Where separated parents can make joint custody work, the child – and the entire family unit – are likely to benefit.

126     But joint custody will only work if the parents have the desire and the capacity to make it work. It is not a risk-free option. In the wrong family circumstances, a joint custodyorder can perpetuate hostilities, indecision, and power struggles. Children, particularly children already exposed to the upset of family breakdown, look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

 Therefore, the maximum contact principle under the Act does not necessarily guarantee that joint custody is appropriate. Justice Bielby indicated in Colwell v. Colwell (1992), 38 R.F.L. (3d) 345 (Alta. Q.B.) at p. 348:

 …where there is no history of effective joint decision making, post separation, the court must examine the evidence to decide if it reveals a couple with the maturity, self-control, ability, will and communication skills to make proper joint decisions about their children. If it does not, it would not be in the best interests of the children to order joint custody.

 To make such an order where these qualities do not exist would impede the ability of the parent with whom the children reside to care properly for them. It would result in the parent being obligated to deal with issues facing the children without the full power to do so, i.e. it would impose on that parent responsibility without the power to meet it. Such an order could give the non-residential parent the potential to manipulate, with resulting damage to the ability of the residential parent to provide a contented home for the children.


Slavish Adherence to Status Quo in G.E.R. v. H.J.R.

The Supreme Court of P.E.I. recently released a decision in G.E.R. v. H.J.R. dealing with an application to to vary an interim order.

The parties had two children, aged 7 and 11, and maintained a joint and shared custody arrangement involving alternating weeks, emerging out of an interim order dated November 15, 2011. However, the relationship was characterized by high conflict, and there had been numerous disputes between the parents.

The father had unilaterally and without communication with the mother changed the children’s dentist, made changes to their pharmacist, and enrolled one of them in Cubs. In this application he sought to have the children change schools. Most importantly, the father intentionally refused to communicate with the mother numerous times, which undermined the joint and shared custody arrangement.

Justice Campbell found that the current shared parenting arrangement was untenable, and varied the interim arrangements for custody and access. He commented on how family law has changed, and proceedings usually drag on for years, meaning that interim orders often act as final orders. Parties are reluctant to go to trial due to the cost.

He commented on how stable and predictable custody arrangements can be valuable to children, but courts must retain the ability to alter interim orders to reflect emerging developments. He then commented on adherence to the status quo:

[21]      Preservation of the status quo in custodial arrangements has been deemed to be of paramount importance and something that should only be altered in exceptional circumstances. The implicit, and sometimes explicit, presumption is that a regular schedule provides stability.  That is very often the case.  However, in some cases, including week-about shared parenting arrangements,  it may do nothing more than ensure consistent instability. Refusing to alter the status quo in the name of stability may provide certainty regarding custodial arrangements, and may save the courts from hearing variation applications or appeals of custodial motions, but it is not a guarantee that the best interests of the child have been considered.  Slavish adherence to the status quo presumes the best interests of the child are static as of the moment in time when the first motion is presented to court.  That is often not the case.  Consideration of the best interests of the child are paramount to any notion of preservation of the status quo.
[emphasis added]

The failure of the parties to communicate undermined the shared parenting arrangement and was not in the best interest of the children. Justice Campbell denied the application to change the children’s school, and ordered that the children would stay with the mother during the school week and go to the father on alternating weekends.

Going to Trial in Ontario

Preparing for Trial

The applicant must serve and file a trial record at least 30 days before a trial in Ontario. The trial record must include:

1. The application, answer and reply, if any.
2. Any agreed statement of facts.
3. If relevant to an issue at trial, financial statements and net family property statements by all parties, completed not more than 30 days before the record is served.
3.1 If the trial involves a claim for custody of or access to a child, the applicable documents referred to in rule 35.1.
4. Any assessment report ordered by the court or obtained by consent of the parties.
5. Any temporary order relating to a matter still in dispute.
6. Any order relating to the trial.
7. The relevant parts of any transcript on which the party intends to rely at trial.

The respondent can then add to these documents by serving and filing them at least seven days before trial. Signed expert reports must be served at least 90 days before trial (unless it is a child protection case), and must contain:

1. The expert’s name, address and area of expertise.
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
3. The substance of the expert’s proposed evidence.

Witnesses can be summoned using a Form 23 (Form 23A if the witness is outside of Ontario), and must be paid set amounts for their time, travel, and stay. A court may issue a warrant for arrest (Form 32B) if a person fails to respond to a summons and it is necessary to have them present.

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Answering a Case in Ontario

The second step in family litigation in Ontario, after the filing of an application, is an answer (Form 10). The person who received the application is known as the respondent, and the application allows this party to explain their version of the dispute and ask for relief. The answer can also make a claim against the applicant or another party, and these individuals then become a respondent in the case as well.

If an answer includes a claim for custody or access to a child, it must include the documents referred to in rule 35.1, such as an affidavit and police record check.

The time for service of an answer is within 30 days within Canada, or 60 days if served outside of Canada or the United States, and must be served on every party named in the application. The timing is shorter for an answer dealing with an application to dispense with parent’s consent to adoption before placement, and for answer by a respondent made a party through someone else`s answer.

There are severe consequences for not filing an answer, and a person may lose entitlement to any notice of future steps in the case or lose participation, including setting a date for an uncontested trial. This is part of the reason why orders for substitute service or dispensing service are taken so seriously.

The applicant has 10 days after the respondent serves an answer to file a response, which is called a reply (Form 10A). Because lawyers can often work cooperatively with each other to save time and resources during litigation, it’s not uncommon for a lawyer to grant an extension beyond these 10 days. The working relationship between lawyers is one of the many examples of how hiring someone to assist you in your case can actually save you time and money.

The applicant may also amend the application without permission of the court before the answer has been filed. If the answer has been filed, consent from the other side or an order is required. Similarly, an answer may be amended without the court’s permission by serving and filing within 14 days of receiving an amended application, or with consent of the other party if the application has not been amended. Courts will typically grant an amendment in the interest of fairness, even where the other party does not consent, where costs or an adjournment can otherwise compensate a party for any disadvantage.

Amendments to child protection cases by either the applicant or the respondent may include an amended application and/or an amended plan of care.

See also the Law Society of Upper Canada’s How to Prepare an Answer