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Custody and Access

Going through a divorce can often be a difficult and emotional process, especially when children are involved. It is important to familiarize yourself with your rights and obligations to your children after a divorce.

Custody is usually granted in the best interest of the child, and there are a few principles that courts try to rely on in order to make the process easier for the child. Generally, siblings are not separated so as to keep the status quo and maintain regularity. The courts often take in the opinion of the child as well, especially if they are older.

Remember that the past conduct of either parent is not relevant unless it has an impact on your/their ability to be a guardian to the child.

If the parents cannot come to an agreement about the custody of the children at the time of separation, they may ask the courts to decide the issue by: (a) starting a custody proceeding under the Children’s Law Reform Act or (b) by claiming custody in a divorce proceeding.
At the interim custody stage, the courts usually will not disrupt the status quo, therefore whoever has the child in custody at the time of the motion is generally allowed to keep the child until the trial.

Either or both spouses may make an application for custody, however another person may make an application so long as they receive permission from the courts to do so.

Under the Children’s Law Reform Act, the court can appoint a person who has technical or professional skills (such as a psychologist or a social worker) to assess the ability of either spouse to care for the child. This assessment report can help the judge decide the issue of custody.

There are also a variety of enforcements that can occur when the courts make a ruling on the issue of custody. Some examples of enforcement orders are as follows: (a) The court may order that custody or access is supervised by somebody (b) may make an order restraining a person from contacting the children or being a specified distance from them (c) make specific orders about support payments, and passports to ensure the party does not unlawfully remove the child from the province or country.

The decision of the courts regarding custody has a legal effect throughout Canada and may be registered in any court in a province and enforced as an order of that court.

If you did not receive a decision regarding custody that you may have wanted, you may make a variation of custody order. This variation proceeding can be commenced as long as there has been a change in the condition, means, needs or other circumstances of the child since the making of the custody order. In this circumstance, the court has the power to change, cancel or suspend a custody order or any of its provisions.

The lawyers at Bykov Empel LLP have proficient experience in areas of family law, including divorce and custody proceedings. If you are fighting for the custody of your child, call Bykov Empel LLP, Toronto’s Family lawyers, and schedule your free consultation.