The Fishman Beley Family Law Primer gives you an understanding of the language and terminology used in custody cases. The topics we deal with here are:
Custody of children typically is taken to mean and include which parent makes the decisions, who can give consent on behalf of a child, and where the children will live from time to time.
The parents of children, while the family is intact, are said to have “joint custody” of them. Each, prior to separation, has all of the rights and obligations respecting their children, subject only to the court's oversight jurisdiction in the case of abuse or neglect, or the provisions of criminal law.
What this means is that the parents are responsible for the care, protection, health, education and welfare of their children. Each parent has the right and duty to act responsibly for the children. Each can make whatever decision is required, give any consent, and each has full responsibility for parental duties to their children. When the parents don’t agree, they must find a solution that works for their family. Unfortunately, this kind of disagreement can sometimes mean that they will separate and seek the court’s assistance.
Custody after Separation
Contested custody battles can be about profound and intractable differences that go to the core of human existence while, at other times, the parties are fighting over terminology or mundane trivialities.
On separation, unless the parents agree otherwise, or the court on application makes an order, they continue to have joint custody.
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. The question of decision-making authority often takes centre stage in the disputes between the parties.
Joint Legal Custody
The term "joint custody", while often confused with equal “shared parenting”, speaks mainly to the “legal” side of things; that is, the ability to give legal consent or to make legal decisions for a child. Parents share joint custody during their cohabitation and continue to so after separation unless they agree or a court orders otherwise. It is not dependent on where the children actually live, that is, how the parents share physical “care and control”.
When a court orders that the parties shall have joint custody, it simply means each parent can make all of the decisions and has all of the same rights as the other respecting the child, as previously, for example, to give medical consent or enrol the child in a school.
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, and their children have the best chance of surviving their parent’s separation.
Best Interests of the Child
When the court makes a determination of the custody, care and control of children it is governed by answering the test question: "What is in the best interests of the child?” Statutory guidance as to the meaning of this test can be found in The Family Maintenance Act and The Child and Family Services Act and the thousands of reported cases interpreting those guidelines in the light of the myriad array of facts to be found in them.
What will be in the best interests of children remains a flexible concept, as current ideas, social mores and the fruits of research change over time. An appreciation of the test will include considerations of the age of the child, the past history of care, a recognition of the need for stability in the child's life, the parent's respective custody plans, the willingness of the parents to involve the other in the child’s life, the specific needs of the child, the drive to keep children together, and may also include taking account of financial, moral or religious issues.
Each case is different, so it can be difficult to predict outcomes. Sometimes, the reality is that the court is required to choose “the least detrimental alternative.”
“Sole custody” usually means that one parent will have sole legal and primary physical custody, with the other parent having “access” or “visiting rights.” A child whose parents have never lived together after her birth is deemed to be in the sole custody of the parent with whom she is living. This of course can be changed by the court on application.
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 courts, which only a couple of decades ago were reluctant to order joint custody where the parents showed an inability to work together, are now just as reluctant to order sole custody, except in unusual circumstances, such as where the other parent is seen as unfit, or absent. Most cases now see the parents having “joint custody.”
Sometimes the court will designate one parent as having “primary care and control,” which, on its simplest level, means that the children reside most of the time with one of the parents. For child support purposes, the primary parent will typically have care of the child over 60% of the time throughout the year and the other parent will pay the table amount. See our Primer of Child Support.
The term “primary” has, however, taken on a different gloss to imply that one parent is in a position to dictate certain things, that is, make decisions, by virtue of that designation, whether or not that decision making power has been decided. This follows from the decision of the Manitoba Court of Appeal in Lamont-Daneault v. Daneault, in which they determined that decision-making should usually reside with the primary parent.
In a "split custody" case – that is, where there are at least 2 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 for the child in the primary care of the other parent and offsetting one against the other. The court has no discretion about the amount of support payable in a split custody case. Usually one party pays the net amount, that is, the difference between the two amounts. See our discussion about the tax issues that might arise.
A “shared custody” arrangement is, as defined by the Child Support Guidelines, about which you will find more in our Primer on Child Support, is defined as one where a child's physical custody is shared between the parents with each having the child in his or her care between 40% and 60% of the time over the year.
This percentage is important as the court will have the rare opportunity of determining child support other than as dictated by the Guidelines. This can, unfortunately, be a trigger for claims of shared custody not so much having to do with the best interests of the children, but for the goal of having to pay a reduced amount of child support that might result.
A non-custodial parent, as the other parent in a sole custody situation is often called, may seek to have “access” or “visitation rights” to the child. While this gives the non-custodial parent and child an opportunity to spend time together, that parent is not, without more from the court, entitled to make decisions for the child beyond the provision day-to-day care.
In those cases where a parent and child cannot, or should not, spend time together alone, the court may order supervised access. The list of reasons is not exhaustive. In some cases, the parent cannot be trusted to care for the child, or be trusted to remain calm, or to not say inappropriate things to the child. Sometimes the need for supervision may be responsive to the needs or best interests of the child.
Supervision can be by a family member, friend, other interested and trustworthy third party, or by a professional.
The Winnipeg Children’s Access Agency (WCAA) is a low-cost and professional alternative that works well in many of these kinds of cases. The WCAA requires the parents to agree to a set of terms and conditions which include the parents arriving at their facility separately.
Visits can last up to 2 hours, but may be terminated earlier in the supervisor’s discretion. The supervisor’s role is to observe and provide limited guidance where appropriate. They do make notes of the visits which can be subpoenaed to court if required. The cost to the parties is minimal. There is usually a waiting list.
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, parties may 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, but hard cases demand decisions.
The courts have also approved other formulations avoiding the language of custody, 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.
When cohabiting 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, or coming into the arena of the criminal law, will have the authority to tell them what to do. Often enough, however, these kinds of conflicts figure in the breakup itself.
On separation, the power to make decisions is often hotly contested. In reality, however, there are few such decisions that most parents can’t or won’t work out.
Typically, disputes about decisions will be found in matters of education, health choices and activities. There is often an intersecting interest in relation to those decisions, such as a parent’s time and involvement or the cost of the choice. For example, the choice of enrolment of a child in a sports program, such as hockey, might impose on both parents’ time and responsibilities and the cost can be prohibitive. There are often child support considerations under The Child Support Guidelines for what are known as Section 7 expenses. See the Fishman Beley Primer on Child Support.
Courts can divide decision-making or give it all to one parent, but will usually insist on meaningful consultation or mediation before the decision is made and will generally allow such a dispute to be adjudicated by the court, if necessary.
Unless the court orders otherwise, the non-custodial parent has the same rights as the sole-custodial parent to obtain school, medical and other reports respecting the child. At Fishman Beley, we will often recommend to our clients that they ensure the child’s school, daycare, or other service providers – including doctors, dentists and counsellors – are aware of the parental separation and are instructed to provide duplicate notices and reports.
The right to obtain information is not the right to demand the generation of reports and the like, however. That may require the consent of both parents or may fall to the decision-making parent’s authority.
A major issue for many parents in modern society where the adult population is increasingly mobile – usually for work, but also for other personal purposes – is what happens to the children when one parent wants to move to another city, province or country.
The court can put terms, conditions or restrictions on custody. Often the right to move with the children out of the province or even significantly far away from the other parent within the province is restricted or at least suspended pending an application on that behalf.
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.
When parents divorce and settle their custody and visitation issues between themselves, it is 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, may not have rights or is unprepared to share them with those significant adults.
Recent changes to The Child and Family Services Act allow a grandparent, step-parent or other member of a child's family to apply for visiting rights to a child. The test is what is in the best interests of the child and consideration of the grandparent/grandchild relationship, the potential benefits to the child, the nature of the relationship, and consideration of the mental, emotional and physical needs of the child.
The Act also allows for the possibility that non-family members – such as a former babysitter, family friend or other person who might have established a significant relationship with the child – in an exceptional case, should have the right to access to a child.
The court can order, among other things, that the child spend time with the applicant, have them attend special events, receive gifts and communicate, and that the applicant receive pictures and information about the child.
Contested custody cases are often lengthy, bitter and expensive, so the court and the legislation attempt to make serious efforts to bring the parties to agreement.
Children are not welcome witnesses in court. While the court will usually prohibit a minor child from testifying, and most judges will not engage in meeting with the child in chambers as happened occasionally in the past, there is merit to hearing the child’s voice and to have unbiased objective evidence of the child’s wellbeing. One of the ways in which the child’s voice gets to be heard is through an assessment or home study report.
Assessments are typically performed by professionals in social work or psychology with the goal of providing expert evidence to the court about the children’s best interests, the capacity of the parents in their parenting role and what living arrangements might be seen as optimum.
Typically, assessors will familiarize themselves with the court file, spend time with the parents, the children in the care of each parent and – subject to the child’s age and maturity – may interview the child on his or her own. Usually, each parent and the children will be observed in their home. Some assessors will use psychometric testing as an aide and most will speak to a selection of collateral third parties and other professionals involved in the child’s life. After the interview process is completed, a report setting out findings and recommendations is prepared. These sometimes run to 100 pages or more.
Assessments are available at no cost to the parties, on court order, when undertaken by the Family Conciliation Service connected to the court. It currently takes about 6 to 9 months from the time the assessment is ready to be undertaken – there is usually a lengthy wait list – until completion.
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 thousands of dollars.
The Family Conciliation Service will also undertake a Brief Consultation with the parties and children, upon an appropriate court order, which will usually be completed within 30 days.
This form or assessment is usually is limited to office interviews and to older children, typically at least 11 or 12 years old. It’s often employed where the parties are unable to agree upon what the child is actually saying about his or her preferred living arrangements. It is important to note that there is no rule that says a 12-year old child has the right to decide where he or she will live. This is one of the more popular and destructive myths in family law.
Where there is a dispute on custody or care and control issues, the court requires that the parties complete the parent information program called For the Sake of the Children. A completion certificate will be filed in court.
This program is run by the Family Conciliation Service attached to the court. These are the same personnel who perform court ordered assessments and brief consultations.
Parents will typically attend two separate sessions each and will not attend at the same time as the other. For persons living outside an area in which the program can be accessed, there is a DVD version which can be made available.
The program outlines good parenting practices on separation and gives the parties guidance on what is seen as typical or advisable for children of various ages and stages.
Information about the course is available through the Family Conciliation Service connected to the court – the telephone number is 204-945-7236.