Custody is technically an outdated term. Legislation now refers to custody as “decision-making responsibility” Throughout this article we will refer to “custody”, but it is interchangeable with the aforementioned newer, modern term.
In Ontario, custody is the decision-making authority over a child. It is not about where a child lives, as that instead is the “parenting time” for a child. Please see our blog regarding access/parenting time for information on that subject. It is important for decisions to be made for a child, otherwise, for example, a child may not receive vital healthcare or assistance with an educational concern. The primary principle considered in all decisions related to custody is the best interests of the child.
There are several types of custody arrangements exist in Ontario:
A single parent has all decision-making authority over the child in question. This authority includes decisions over the child’s healthcare, education, religion and extracurricular activities. In this situation, the other parent may be informed and/or consulted by the first parent regarding a decision, or not.
Both parents share the decision-making responsibilities over the child. In this instance, one parent could be given “final decision-making responsibility” in the event of a dispute to ensure a decision is made for the child, rather than no decision being made.
Each parent is given final decision-making responsibility on a specific set of decisions. For example, one parent may make decisions on health and religion, while the other parent makes decisions on education and extracurricular activities. Regardless of who makes the decisions, the parents may be obligated to consult with each other, at a minimum, before making the decision.
As stated above, courts will be guided by the best interests of the child when making decisions on custody. The court considers the child’s needs, their relationship with each parent, the parent’s ability to care for that child, the previous history of caregiving, family violence or abuse, and the willingness of the parents to continue the communication required for avenues such as joint custody. If the child is old enough to give their opinion, the child’s preferences may be considered as well.
Parents can agree on a custody arrangement, which can come in the form of a Parenting Plan or be part of a Separation Agreement. The court can also order the parents and child into a custody arrangement. If disputes about custody arise thereafter, these can be resolved through mediation or alternative dispute resolution options. The courts can also be used, though this is typically a more expensive avenue than those previously mentioned.
Custody arrangements are not set in stone and can change over time. Examples where change may be required would be one parent moving, remarriage, or some sort of change in what the child may require. Changes in the circumstances of the parties and/or the child can affect the situation enough for a parent to apply to a court or other source to have a change to the existing agreement or order.
If you are navigating a custody dispute, legal advice can help ensure the best outcome for you and your child. At INB Family Law, our experienced lawyers provide personalised guidance on your parental rights and responsibilities. Contact us today for a consultation.