Custody and Access and Withholding of Children

When parents decide to go their separate ways, issues of child custody and access can be a source of significant conflict. However, when one parent withholds a child from the other parent following a separation, it hurts everyone – especially the child.

The Children’s Law Reform Act and Divorce Act

The Ontario Children’s Law Reform Act applies to parents in three sets of circumstances:

  • Married couples with children who decide to stay married but live separately
  • Common law spouses who decide to separate
  • Parties who share a child but who are neither married nor common law spouses

When married parents separate and proceed with divorce, they are governed by the Federal Divorce Act, although the factors espoused in the Ontario legislation are often still relevant to the custody and access determinations.

Entitlement to Custody and Access under the CLRA

Section 20, subsection 1 of the Children’s Law Reform Act states that except as otherwise provided by the legislation “the father and the mother of a child are equally entitled to custody of the child.”

Section 20, subsection 4 provides that where parents live separate and apart and a child continues to reside with one parent with the consent, either implied or explicit, of the other, the right to custody, but not access, is suspended until a separation agreement or order provides otherwise.

Section 20, subsection 5 states that “[t]he entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.”

Factors Courts Consider for Determining Custody and Access

Parents and non-parents have the ability to file an application for an order of custody or access with the court pursuant to Section 21(1) of the Children’s Law Reform Act.

Once an application has been filed, the court has the power to determine custody and access on both an interim and final basis and has broad discretion regarding the form and nature of these orders under Section 28 (1).

Courts consider a long list of factors when deciding whether it’s in a child’s best interest for the court to grant a parent custody or access rights with respect to the child. These factors are found in Section 24(2) and include:

  • The love, affection, and emotional ties between the child and the parent, as well as other members of the parent’s household and people involved in the child’s care and upbringing
  • The child’s wishes
  • The amount of time the child has lived in a stable home
  • Each parent’s willingness and ability to provide the child with guidance, education, and support
  • How each parent plans to provide for the child’s care and upbringing
  • The stability of the family environment where the child will reside
  • The parenting skills of each parent
  • The relationship, whether by blood or adoption, between the parent and the child
  • The parent’s past conduct; and
  • Whether the parent has committed any acts of domestic violence against a spouse, child, or member of his or her household

In the vast majority of cases, the courts will award some access between the child and the non-custodial parent, although there may be restrictions, including supervision by a family member or professional facility or the requirement not to engage in certain conduct during or before access, such as drinking or smoking.

If a parent is withholding a child from another parent because he or she believes that these types of restrictions are required, it is important that this parent seeks immediate legal advice on how to proceed to ensure that the disruption of the child’s contact with the other parent is minimized as much as possible.