Often, matters that arise as a result of the divorce/separation can be resolved by negotiation through Counsel and the parties. Negotiations can occur many ways including: by way of letter between Counsel; discussions between the parties; or if the parties wish, by way of four-way meetings with both parties and their Counsel.
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Custody, Parenting, Access and Your Children
Not surprisingly, custody and access are the most emotional and often, the most contentious issues for divorcing/separating couples. Parents are concerned about the well-being of their children and worry about the impacts of divorce/separation on their children. At Ontario Family Lawyer understands the negative effects that high conflict divorce/separation has on children and we work with our clients to negotiate custody, access and parenting agreements that take into account the best interests of the children.
The legislation and case law provides that all decisions with respect to custody and access are made pursuant to the best interests of the child.
Custody – Decision Making
Clients often confuse custody and access. Custody refers to decision making about a child’s health, education, religion, extracurricular activities, and well-being.
Divorcing/separating couples who are able to cooperate in making decisions about their child(ren) together often agree to have “joint custody” of the children. This means that the parents will make decisions about the children’s health, education, religion, extra-curricular activities, and well-being together. Sometimes, parents who have joint custody cannot agree on a particular issue concerning their children. These matters can be resolved through negotiation, mediation/arbitration, or through the Court.
In high conflict cases where the parents have demonstrated that they are unable to jointly make decisions about the children one parent will likely have or be awarded “sole custody”. The parent who has sole custody of the children has the exclusive right to make decisions about the children’s health, education, religion, extra-curricular activities, and well-being. The non-custodial parent has the right to be informed about all matters regarding the children and in most cases the non-custodial parent has the right to have access to their children.
Parenting/Access
Access (also referred to as “parenting”) refers to the residency arrangements for the children. At Ontario Family Lawyer we recognize that access schedules/parenting plans are unique to each family’s circumstances and we work with our clients to fashion access schedules/parenting plans that provide stability and predictability for the children and parents.
The Office of the Children’s Lawyer (“the OCL”) – Lawyers for Children
When custody and access issues are high conflict for divorcing/separating parents and they are unable to negotiate a custody and parenting/access regime, the Office of Children’s Lawyer (OCL) can become involved in the matter. The OCL is an independent body that provides free services for your child(ren). The OCL may assign a Children’s Lawyer to represent your child(ren) to ensure that his/her voice is heard and needs are met. The OCL may choose to assign a Social Worker to complete an Assessment in order to determine what is in the best interests of the child(ren) involved. Upon completion of the Assessment, the OCL will make recommendations regarding custody and access/parenting and work with the parents to resolve the issues.
Custody and Parenting Assessments – Section 30 Assessments/Private Assessments
Another option available to couples who cannot agree on a custody and parenting/access regime that is in the best interests of the children is a private assessment. For a private assessment to be completed, both parents have to consent to retain a qualified private assessor. If one parent will not consent, the Court has the jurisdiction to Order what is referred to as a Section 30 Assessment. Section 30 of the Children’s Law Reform Act gives the Court the jurisdiction to Order that an Assessment be completed to determine what is in the best interests of the children and the Court has the jurisdiction to Order that one or both parents pay the costs of the Assessment. Generally, the purpose of an Assessment is to determine what is in the best interests of the children and to provide recommendations to the parents with respect to custody and parenting/access.