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Police Enforcement of Custody and Access Orders
Custodial and access (also known as “visitation”) rights under a court order or from a separation agreement are enforceable under the Criminal Code of Canada and the Hague Convention on International Child Abduction. Both the Code and the Convention serve to protect a child’s right to security and stability by enforcing custody orders and prohibiting child abductions, locally and internationally.
The enforcement of custodial and access rights in Ontario is also governed by the Children’s Law Reform Act (CLRA). Pursuant to section 36 of the Act, if a family court judge is satisfied that there are “reasonable and probable grounds for believing that a person is unlawfully withholding a child” the court has the ability to compel the police to enforce a custody or access order and may authorize the police to locate, apprehend, and deliver the child to the person entitled to custody or access of that child.
Courts have refused to grant an order for police enforcement on the grounds that it would be intrusive and a potentially frightening method of enforcement to a child. Drake v. Cox (1993). Such a result would not be in the best interests of a child and some courts have instead opted to punish an act of willful contempt by imposing either a fine or imprisonment for the failure to comply with a custodial or access arrangement as stipulated by the court.
Courts can issue police enforcement orders if deemed appropriate in light of the surrounding circumstances, such as a history of unjustified access denial between the parties, serious threats of non-removal of the child, or to maintain the relationship between the child and the person entitled to custody or access, and that such enforcement would outweigh any potential risks.
For more information about the enforcement of your custodial or access arrangement, contact us at 416 222 4555 or info@divorcesupport.ca.
Filed in Child Custody in Ontario, Child Visitation, Marriage Contracts, Separation Agreements • Tags: Children’s Law Reform Act, Hague Convention on International Child Abduction, Police Enforcement of Child Custory
What Are My Child Visitation or Access Rights as a Non-Parent?
Access for Parents
Access (also known as “visitation”) is the child’s right to have contact with his or her non-custodial parent after a separation or divorce. Access can be determined informally between the parents, by way of a written agreement, or a court can make an order.
Who else may Seek Access?
In addition to a biological parent, other persons who have had or want to have a relationship with a child may also seek reasonable access pursuant to section 21 of the Children’s Law Reform Act and section 16(3) of the Divorce Act. “Non-parents” include grandparents and other relatives, step-parents, and common-law partners who are not the biological parent of the child.
Procedure for Grandparents and other Non-Parents to Request Access to a Child
Non-parents must seek leave (permission) from the court to submit an application for access. A court can grant an order for access to a non-parent under a number of circumstances, including where the non-parent has had a close relationship and is seeking to continue to spend time with the child. The merits of an application for access are determined based on whether it would be in the child’s “best interests” and whether there is “some beneficial connection” between the non-parent and the child. J.H. v. B.G. (1993).
Considerations for Granting Access to Non-Parents
As a general rule, biological parents have the right to determine with whom their children will associate. However, a judge can override a parent’s access decision on the premise that the child would benefit from having contact with the non-parent, particularly if there is a genuine bond between the child and the non-parent and whether severing any pre-existing relationship would have an adverse impact upon the child.
An order for access will not be granted if the biological parent can provide compelling reasons that denying access to the non-parent would be in the child’s best interests.
Contact a Family Lawyer who can assist you in understanding the judicial process and your rights and obligations before filing an application for access with the court. Call Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca.
Filed in Child Visitation • Tags: Children’s Law Reform Act, Divorce Act, Grandparent Visitation, Step Parent Visitation
Are You the Biological Parent? How to Establish the Parentage of a Child
It is becoming increasingly common for a parent to seek a declaration of parentage of a child after the breakdown of a relationship, particularly if the parents never lived together and there is no evidence to presume parentage.
Legislation
The legislative scheme in the Children’s Law Reform Act (“CLRA”) deals with child custody and access and the status of children who are born in or out of marriage. The CLRA also deals with the establishment of parentage.
Pursuant to the CLRA, a party in a civil proceeding to determine the parentage of a child, or in any civil proceeding in an Ontario court where a question of parentage arises (Z v. Z (1978)), may seek permission from the court to obtain blood or DNA tests of an alleged parent and may submit the results of the tests in evidence.
Blood and DNA Testing
Traditional blood testing has given way to DNA testing which can provide a much greater probability of paternity or maternity of 99.95% or higher. DNA testing is also much less intrusive than blood testing and is becoming more frequently used as the method of testing, however the results are still open to challenge.
Presumption of Paternity
The CLRA provides for a “presumption of paternity” in a case where the facts fall within one of six circumstances as set out in s.8(1) of the CLRA, including:
- cohabitation with the mother at the time of the child’s birth;
- recognition by a court that a person is the father of the child;
- certification of the child’s birth as the child’s father under the Vital Statistics Act;
- marriage to the mother of the child at the time of birth;
- marriage to the mother of the child within 300 days of the birth but the marriage was terminated due to death, nullity, or divorce; or
- marriage to the mother of the child after the child’s birth and acknowledgement that he is the natural father.
Unless the contrary of the presumption is proven on a “balance of probabilities” that the person is not the father of the child, there is a presumption that the person is, and as such will be recognized in law to be, the father of the child. This presumption as set out in section 8(1) of the CLRA is also utilized when a court is required to make a determination of parentage for the purpose of establishing child support obligations in an application pursuant to the Family Law Act.
Establishing parentage of a child upon the breakdown of a relationship is important when determining custodial rights and child support.
Contact a Family Lawyer who can assist you in understanding the judicial process and your rights and obligations before filing an application with the court. Call Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca
Filed in Child Custody in Ontario, Questions and Answers • Tags: Children’s Law Reform Act, CLRA, DNA Testing, Family Law Act, Vital Statistics Act
Who Gets the Kids? Custodial Arrangements
When a couple separates they must decide how they will share their parenting rights and responsibilities of the children. Several decisions must be made including which parent has the right to make the important day-to-day decisions about the care and upbringing of the children and with which parent the children will reside.
In the absence of a court order or a provision in a separation agreement, either parent has an equal right to the custody of their children. Typically, custody of a child involves the physical care and control, as well as the decision-making authority over the child.
The Children’s Law Reform Act and the Divorce Act direct courts to determine matters relating to child custody on the sole basis of what is in the best interests of the child. In determining the child’s best interests, the court must consider several factors including the physical, emotional, and economic needs of the child.
Four Types of Child Custody
There are four main types of custody: sole, joint, shared, and split.
- Sole custody is where the child primarily resides with one parent, who is also the child’s primary caregiver and has the legal right to make all major decisions.
- Joint custody provides each parent with equal parental responsibility and with decision-making authority relating to the child.
- Shared custody allows parents to jointly exercise parenting authority with the child dividing his or her time between the respective homes, spending an equal amount of time with each parent.
- Split custody is where there is more than one child and the children are separated and living with different parents.
The definitions of the four custodial arrangements are not fixed and parents and/or the court may combine various aspects of different custodial arrangements to suit the particular set of circumstances for an individual family.
It is important for parents to know their custodial rights, contact a Family Lawyer who can advise you as to your rights and that of the best interests of your children. Call Niren and Associates at 416 222 4555 or email us at info@divorcesupport.ca.
Filed in Child Custody in Ontario, Questions and Answers • Tags: Children’s Law Reform Act, Divorce Act
Child Visitation Rights: Custody and Access for Children when Separating
CUSTODY vs. ACCESS or VISITATION
When parents separate the continued care and welfare of the children become major issues. Unless all parenting rights and responsibilities for the children are agreed upon between the parents to be equally shared, typically one parent will keep the majority of the day-to-day responsibilities, decision-making rights, and the physical care of the children (“custody”). The other parent will have the right to visit with the children and the right to be kept informed about the children’s health, education, and welfare (“access”).
CHILD’S BEST INTERESTS
When parents who separate cannot agree on the parenting arrangements for the children, they can go to a court have a judge make the decision. Under the Divorce Act and the Children’s Law Reform Act, a judge must decide “the best interests of the child” when making an order for custody and access. The judge must consider a number of factors including: the emotional ties between the child and each parent, proposed plans for the child, stability of the home environment, each parent’s capabilities and willingness to parent, and, depending on the age and maturity of the child, the child’s wishes.
ACCESS TERMS
Once the judge has determined that it is in the best interests of the child that an access order should be made, the judge must then focus on the terms of access, including: overnight and weekend periods of stay, holiday schedules, and vacation. The terms of access can be flexible (for example, “liberal and generous”) or structured (for example, “alternate weekends”), depending on the facts of the specific case.
SUPERVISED vs. UNSUPERVISED ACCESS
Access is normally unsupervised, however, where there are genuine and well-founded concerns about the safety of the children and/or for the custodial parent, the court can require visits or exchanges with the children to be “supervised”. Supervised access is a restrictive form of access where the visits are monitored by the custodial parent, a third-party, or a Supervised Access Program, to ensure the safety of all participants.
Supervised access is typically not a permanent provision ordered by the court, instead it usually operates as temporary measure to resolve any difficulties or concerns with access.
When considering custody and access issues, it is important to contact a Family Lawyer who can advise you as to your rights and that of the best interests of your children. Call Niren and Associates at 416 222 4555 or email us at info@divorcesupport.ca.
Filed in Child Custody in Ontario, Child Support, Collaborative Law • Tags: Children’s Law Reform Act, Supervised Access Program