The term custody is one of the most prevalent terms within family litigation but it is also one of the most misunderstood. If you are recently separated or are involved in a family law proceeding it is very important to have a solid understanding of what “Custody” in Ontario actually means.
Legal Custody in Ontario:
In Ontario the term legal custody refers to whether one parent or both parents jointly will be making the major decisions for the children moving forward. Major decisions for the children include decisions relating to education, religion, non-emergency health care decisions, and major extracurricular activities.
If the decision of which parent is to have legal custody or whether a joint legal custody arrangement should be in place is left to the Court, as with all other decisions made by the Court, the “best interests of the children” test is paramount.
Often the Court is faced with the situation whereby each parent is claiming sole custody, or in the alternative, one parent is claiming sole custody, and the other parent believes that a joint custody arrangement is best for the children. Again, the “best interests of the children” is the primary focus of the Judge when he or she is asked by the parties to decide on the issue of legal custody.
In some cases where there has been a long standing status quo of both parents being significantly involved with discussing and making major decisions for the children together, and / or the Court is of the opinion that the parents can communicate with one another effectively enough to continue making decision’s together, a joint custody arrangement may be appropriate.
However, in the case where the Court is not convinced that the parties can communicate effectively in order to make major decisions for the children together in a timely fashion, the Court will not impose a joint custody arrangement on the parties. In those cases it is not in the best interests of the children to have a joint custody (joint decision making) arrangement in place if the parents cannot communicate effectively and work together for the benefit of making these major decisions for the children.
The term legal custody is often confused or used interchangeably with physical custody. Physical custody refers to which parent the children will be primarily residing with. Joint physical custody refers to an arrangement whereby both parents will be caring for the children not less than 40% of the time. Sole physical custody means that one parent is to have primary care of the children and the other parent will usually have a predefined schedule of regular access or visitation with children, unless there are serious concerns with the other parent.
The legal issue of the parenting schedule is a distinct issue, and can also be a very complicated legal issue. Again as with all other issues in family law the best interests of the children is the primary focus where a Court is asked to decide on the living arrangements for the children.
Both the issues of legal custody (major decision making for the children) and physical custody (the living arrangements for the children) can be complicated legal issues with many factors to take into consideration. It is very important to have sound legal advice from an experienced family law lawyer before embarking down the path of litigation or making a final decision via settlement.
Serge Ettinger is a lawyer in Thunder Bay Ontario practicing primarily in the area of family law. If you are dealing with a family law issue in the Thunder Bay, Ontario area call Serge Ettinger Law Office Professional Corporation for a consultation today.
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