Custody of Children
Best Interests of the child
The test in cases involving children is "what is in the best interests of the child". Sometimes the reality is that the court is required to chose "the least detrimental alternative". In Manitoba, The Child & Family Services Act contains a definition of best interests for use in cases involving child protection or adoption, which is often adapted to custody and access cases.
The parent or parents of children are said to have custody of them. They have joint custody, that is, all of the rights and obligations respecting their children, subject only to the court's oversight jurisdiction in the case of abuse or neglect.
On separation, unless the parents agree otherwise or the court on application makes an order, they continue to have joint custody. Questions respecting children are normally determined by attempting to determine what is in the child’s best interests. What will be in the best interests of children remains a flexible concept, as ideas change over time. It usually will include a consideration of the age of the child, the past history of his or her care, stability in the child's life, the parent's respective custody plans, their willingness of the parents to involve the other, the specific needs of the child, the notion that it is good to keep children together, and account of financial, moral or religious issues.
The typical formulations of custody, after separation, are sole custody to one parent with the other having access or visiting rights, or the parties may retain joint custody, with physical care and control being divided between them. This division can be equal or some other formulation.
It should be borne in mind that there are other possibilities and that these formulations, while most common, are not cast in stone. For example, the court can simply decide where the children will live at any given time, without making a so-called "custody" order.
The recent Senate Committee report on custody and access issues, which grew out of the debate on child support guidelines, entitled For the Sake of the Children, recommends a new phrase "shared custody". It does not appear likely that this report will gather much more than dust.
"Joint custody" means each parent can make all of the decisions and has all of the same rights as the other respecting the child, as they could before the separation. When the parents separate, they continue to have joint custody of the children, until they agree otherwise or a court makes an order.
Some people, in the post separation period, are able to agree on what is best for the children and find ways to manage their lives and those of the children, peaceably, without formal agreements or court orders. They are the wise and lucky ones.
When married parents disagree about decisions respecting their children, a power struggle may ensue. The dispute will get resolved in the style that family uses, but no one, short of the child coming into the Child Welfare system for reasons of neglect or abuse, will tell them what to do. Often enough, however, this very conflict figures in the break-up itself.
Occasionally, contested custody battles can be about little more than terminology. The distinction between an arrangement of, say, sole custody to one parent, with the other having access and input into decisions, and one in which the parents have joint legal custody with primary care and control and decision-making power to one of them, is one that most lawyers would be hard pressed to explain.
The real issue when the parents separate is usually about where the children will live, which is usually called "physical care and control", and which parent will make the decisions, which is usually called "final decision-making".
The courts are reluctant to impose joint custody where the parents are not able to work with each other collaboratively. This paradigm can be seen to encourage the spouse with the status quo on his or her side to create difficulties in order to justify an order of sole custody.
Sole Custody usually means that one parent will have sole legal and physical custody with the other parent having "access" or "visiting rights".
The parent with sole custody can make all major decisions respecting the child. Generally, that parent will also have the right, subject to a court ruling otherwise, or being in breach of an access order, to move with the child to another province or country.
The court can put terms, conditions or restrictions on custody. Often the right to move is restricted or at least suspended pending an application on that behalf. Unless the court orders otherwise the non-custodial parent has the same right as the sole custodial parent to obtain school medical and other reports respecting the child.
Physical Care and Control
Physical care and control is the practical side of joint custody, that is, the determination of where the children will live. The division of physical custody or "care and control" can be agreed upon or ordered by the court. It may be as simple or complicated as the parties’ lives and the best interests of the children dictate or require. The division of the children's time with each parent may be as simply put as "the parties may agree" or can be highly structured down to the minute details of time, who picks up and returns the children, where, what will be sent with them, and so on and so on.
Complex arrangements require flexibility, consideration, and compromise to work well. For those who do not get along, the parties can try to program their lives and the lives of their children in exquisite detail. The courts are usually reluctant to impose complicated solutions on families without agreement.
Often one parent will have "primary" care and control and the other one having care and control either in a specified or unspecified share of the child’s time.
The courts have also approved other formulations, such as descriptions avoiding this terminology altogether, using simple statements such as "the children will live with mother" on certain days and "live with father" on other designated days.
In a "split custody" case, that is, where there are at least two children, one of whom is living with each parent more than 60% of the time, the court performs the mathematic exercise of determining the table amount for each parent and offsetting one against the other. The court has no discretion.
Shared Custody Situation
A shared custody situation is where a child's physical custody over the course of the year is shared between the parents with each having the child in his or her care between 40 and 60 percent of the time. This percentage is important as the court will have the rare opportunity of determining child support other than on the Tables. It can order the table amount, an amount as if it were a "split custody" situation, an different amount taking into account the "increased costs" of the arrangements or by reference to the condition, means and other circumstances of the parents and the child for whom support is sought.
Consultation and Decision-Making
Courts will often require the parents to consult with each other prior to any major decisions being made. Disputes may be resolved by having the parties to mediation, return to court, by one parent having "final decision-making power". This decision-making authority may be broadly stated or limited, such as in emergencies, or to certain areas of the child's life, such as extra-curricular activities, or religion, for example.
Grandparent and Third Party Access
When parents divorce and settle their custody and visitation issues between themselves, it not only the parties and children who might be affected. Often children who have had a close relationship with other adults, grandparents or aunts and uncles, for example, find that those significant persons have no right and opportunity to see them because the parent, through whom they might be connected, perhaps has no rights or is unprepared to share them with those significant adults.
Recent changes to the Child and Family Services Act allow "family members", as that phrase is defined in the Act, to apply for visiting rights to a child. The law previously restricted such applications, usually by disenfranchised grandparents, by requiring the proposed visitor to prove that there were "extraordinary circumstances" to justify the court making an order.
Now the test for "family members" is the more common one, "what is in the best interests of the child".
The old test - one that was rarely met - will still apply to non-family members who wish to have access to a child, such as a former babysitter, former family friend or other person who might have established a significant relationship with the child. In November 2006 the provincial government introduced a bill to amend the act to add clarity and specificity to the provisions: see News.
A major issue for many parents in modern society where the adult population is increasingly mobile is what happens to the children when one parent wants to move to another city, province or country. The issue has been dealt with by the Supreme Court of Canada in the case of Gordon v. Goertz. Essentially, the court held that the issue was to be decided on the best interests test, and when challenged by an application by the other parent, the sole custodial parent did not have an automatic right to remove the child.
Right to Information
The right to information about the child is available to all parents, unless it is specifically taken away by the court or by an agreement. Generally schools and other care-givers will co-operate and provide the parents with duplicate reports and schedules.
Contested custody cases are often lengthy and bitter and expensive, so the court and the legislation attempt to make serious efforts to bring the parties to agreement. Often a home assessment or other kind of assessment will be used by the court to help determine what is in the child’s best interests.
An assessor will usually take information from counsel, meet individually with the parties, each of the children, other significant adults and care-givers, and each of the parents with the children. After the interview process is completed, a report setting out findings and recommendations is prepared.
Home Assessments are usually undertaken at no cost to the parties, on court order, by the Family Conciliation Service connected to the court. It currently takes about 6 months from the time the assessment is ordered until completion.
The Family Conciliation Service will also undertake a Brief Assessment of the parties and children, upon an appropriate court order, which will usually be completed within 30 days. This usually is limited to office interviews.
The parties may wish to hire a private professional, such as a social worker or psychologist, to perform the assessment, and one or both of the parties will be responsible for the costs. These private assessments, while having the advantage of giving the parties greater control over the process, and may be quicker, can cost in the range of thousands of dollars.
Mediation is a dispute resolution mechanism usually involving both parties meeting separately or together with an independent person trained in mediation. If the mediation is successful, it will lead to an agreement, which the parties can then ratify with the assistance of their lawyers.
The process is usually on a "without prejudice" basis, that is, it is a form of negotiation that cannot be referred to in subsequent proceedings, so that each of the parties is free to explore different possibilities without being held to their positions. The mediator must be independent and the parties must be free to negotiate for it to be successful.
Parties to mediation should have independent legal advice before, during, and after mediation to ensure they understand the issues and are not unduly pressured. Where there has been a history of physical or mental abuse between the parties, mediation is not recommended.
While custody and access are the areas most commonly mediated, some private mediators, will perform comprehensive mediation incorporating financial issues such as support and property issues, as well.
Mediation is highly recommended in custody and access cases.
Arbitration, essentially a private court system, which is available for most other aspects of a family law case is not useful in custody cases in Manitoba, as the courts in this province maintain jurisdiction over custody matters. Other jurisdictions, such as Ontario, make special provision allowing the mediation of custody matters.
For the Sake of the Children
The court sponsored Family Conciliation Service provides
mediation free and runs an educational program for all parents called "For
the Sake of the Children". While any parent would be well advised to take this
free course, which involves two attendance's and is free of charge, it is
now a requirement in all cases where custody is in issue. Information about
the course is available through the Family Conciliation Service connected
to the court, telephone number (204) 945-7236. View the Practice