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Past Conduct of Parents in Determining Custody and Access

Can the Past Conduct of a Parent be Used to Determine Custody and Access?

I have had clients in the past come to me with this question wondering if they could use the behaviour of their former spouse as evidence that custody or access should be limited as a result of their actions. While this could be true, generally it will only matter where those actions have an effect on their ability to parent the child.

Let’s look a little closer at what this actually means.

First, we need to have a refresher on the “Best Interests of the Child” under s. 24(2) of the Children’s Law Reform Act (“CLRA”). From here, we can now look at how past conduct of a spouse may be factored into that list under s. 24(2).

24(3) of the CLRA shows us that past conduct can be considered but ONLY in relation to custody or access and ONLY THEN in accordance with s. 24(4) of the CLRA. The language in these sections identifies that the conduct will be considered only if the conduct is relevant to the person’s ability to act as a parent (s. 24(3)(b)), and also if there was violence or abuse against the spouse, parent of the child, member or persons’ household, or any child (s. 24(4)).

Keep in mind that anything done in self-defence or to protect another person does not fall under this category of violence or abuse mentioned above (see. S 24(5)).

The Divorce Act (“DA”) also makes mention of these issues under s. 16(9), where again they show that the past conduct is not relevant unless it affects the persons’ ability to act as a parent.

Let’s take adultery as an example.  Somerville v. Somerville is one such case where the extra-marital affair of the husband resulted in the end of the marriage.  What the court found was that the affair only spoke to the husband’s ability as a spouse, NOT his ability to act as a parent to his child.  Therefore it was not a relevant consideration when determining custody or access.


Relevant Parental Conduct

When determining custody or access, courts start with relevant parental conduct to determine who the custodial parent would be and who would be entitled to access.  These initial relevant considerations could include, but is not limited to:

  1. Who has been making the decisions for the child?
  2. How often does the child see each parent currently?
  3. Who prepares the food and clothing for the child?
  4. Who arranges after school activities etc?

Adjusting Terms of Access

After the initial assessment, courts will then see if the conduct of the parents should be considered to see how the terms of access might change such as: frequency, duration, supervision, overnight access, or even if access should be denied.

To support this analysis under s. 24 of the CLRA, Justice Dunn in T.(R.R.) v. T.(G.) considered the use of additional factors:

  1. the non-custodial parent’s acceptance of the custodial parent’s responsibility for the child’s discipline and conduct;
  2. the non-custodial parent’s punctuality, attendance and behaviour on access visits;
  3. the non-custodial parent’s attempts to keep informed of the child’s current events, health and achievements;
  4. the non-custodial parent’s attempts to help the child adjust to returning to the custodial parent; and
  5. the non-custodial parent’s sensitivity to time limitations on the visit.

Sample Case T.(R.R.) v. T.(G.)

In T.(R.R.) v. T.(G.),  the father was denied access because he:

  1. Repeatedly showed up for visits drunk;
  2. Left multiple threatening messages on the mother’s answering machine;
  3. Acted inappropriately during his access visits;
  4. The children didn’t want to visit with the father; and
  5. The children were in a better emotional state when they did not see the father.

Here we can clearly see that the conduct of the father was directly affecting his ability to parent the children.

As a final note, I would like to point out that no parent has an inherent right to access to the child simply because they are the biological parent, nor do they have any proprietary rights or even domain over their child.  See Montgomery v. Montgomery, where the court was clear in showing that no biological link should be permitted to surpass the best interests of the child.

 

Case Citations:

  1. Somerville v. Somerville, 2007 ONCA 210, [2007] O.J. No. 1079, 2007 CarswellOnt 1697, 36 R.F.L.(6th) 7
  2. (R.R.) v. T.(G.), [1994] O.J. No. 2453
  3. Montgomery v. Montgomery, [1992] O.J. No. 2299, 42 R.F.L.(3d) 349 (C.A.) (at 360 [R.F.L]

 

Legal Disclaimer that this is information only and not to be construed as legal advice.

Canada's legalization of Cannabis Use: How will it affect family law?

Canada’s Legalization of Cannabis Use: How Will it Affect Family Law?

Canada’s new Cannabis laws came into force October 17th, 2018, and it is important that persons who choose to consume the drug be aware of what the new laws allow (for a summary of some of the new laws see http://www.justice.gc.ca/eng/cj-jp/cannabis/).

Failure to properly understand the laws and what is permitted regarding possession, distribution, and consumption could cause complications not only for criminal reasons, but potentially family law reasons as well.  These complications could affect some family law issues such as:

  1. Custody and Access
  2. Residency
  3. Mobility

What does The Cannabis Act allow?

Individuals can now legally do the following:

  • possess up to 30 grams of legal cannabis, dried or equivalent in non-dried form in public
  • share up to 30 grams of legal cannabis with other adults
  • buy dried or fresh cannabis and cannabis oil from a provincially-licensed retailer
    • in provinces and territories without a regulated retail framework, individuals are able to purchase cannabis online from federally-licensed producers
  • grow, from licensed seed or seedlings, up to 4 cannabis plants per residence for personal use
  • make cannabis products, such as food and drinks, at home as long as organic solvents are not used to create concentrated products

It is important to note that cannabis must be supplied from a legal source as described above.  Any illicitly acquired cannabis is not protected by the act and may result in penalties.  Furthermore, although edible products can be produced at home, they are not legal for sale for approximately one more year.

Youth and Cannabis

One of the purposes of The Cannabis Act (the “Act”) is to protect the youth from accessing cannabis.  As the Act provides, “No person may sell or provide cannabis to any person under the age of 18”.  This means that individuals cannot give or sell cannabis to youth, or use a youth to commit a cannabis-related offence.

Travel and Cannabis

Cannabis is still illegal in most of the United States.  Crossing the border without properly understanding these laws could create significant issues.  Also, each province is responsible for developing their own regulations regarding Cannabis such as:

  • increasing the minimum age in their province or territory (but not lowering it)
  • lowering the personal possession limit in their jurisdiction
  • creating additional rules for growing cannabis at home, such as lowering the number of plants per residence
  • restricting where adults can consume cannabis, such as in public or in vehicles

Pardons for Simple Pot Convictions

Now that individuals are allowed to possess up to 30 grams of legal Cannabis, Ottawa is moving to pardon those with a pot possession conviction of 30 grams or less (https://globalnews.ca/news/4558996/cannabis-pardons-simple-possession/).  However, those seeking the pardon will have to apply for one.

How might this affect Family Law?

Some questions that may be tested in the future regarding these new laws could include:

  1. Should a parent be allowed to exercise access visits at their home if they fall within the allowed possession or consumption laws? Would this be contrary to the purpose of the Cannabis Act to protect the youth?
  2. What happens if a parent owns illicit cannabis that was shared improperly between adults and contrary to the new laws? Would a judge factor this into any parenting arrangements?
  3. If a person had their parenting arrangements affected by a pot possession conviction, how could that change if their possession conviction is then pardoned?
  4. What if a parent tries to take the child across the border to the US or another province, but is found with legal marijuana in their possession? Would this be factored in negatively by a judge at any family law court proceedings?

Case law will be developed over time regarding Cannabis consumption and possession and how it can affect Family law issues.  We will be keeping an eye on how these and other issues will be interpreted by courts to ensure that we can provide you with up to date information on the issue.

 

Disclaimer: The above is for informational purposes only and does not serve as legal advice. Please speak to your lawyer to better assess your specific situation.

Child Custody and Access Introduction

One of the most significant concerns for parents, if not THE most significant concern, on separation is what will happen with the children.  Where will the child live? Who is going to make decisions for the child regarding their education, religion, or medical care? How much time will each partner spend with the children?

These questions are related to custody and access and this post will focus on those issues alone.  Child support issues are covered in our previous post here.

There are two different statutes dealing with custody and access in Ontario: the Divorce Act for married spouses, and the Children’s Law Reform Act (“CLRA”) for non-married and married spouses (see our post on married vs. Common law spouses for details on the difference between both types of relationships).

But what is the difference between custody and access? Are they not the same thing?

The person who is responsible for the child on a daily basis and makes daily decisions for the child is said to have custody of the child.  This can include decisions on things like: education, religion, and health care.  It does NOT automatically mean which parent the child will live with, although generally the person with sole custody is the parent with whom the child resides.

Access on the other hand is the ability to visit and ask for information regarding the child’s health, education, religion and general welfare.

When making a decision regarding custody and access, the courts will consider the “Best interests of the Child”, see s. 24(2) of the CLRA.  These include:

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

With these two terms defined and a background on the best interests of the child, we can approach what types of custody and access there are.

 

Custody

S.20(1)  of the CLRA provides that both parents have equal entitlement to custody of the children. However this entitlement is limited by s.20(4) of the CLRA.  What this means is that if the child resides with one spouse and you decide to move out, you could effectively be giving away custody rights to your child.  However you do not lose access rights.

Parenting decisions post separation can be approached in multiple ways.  These can include the following:

Joint Custody
With this, both parents must agree on major decisions regarding the child.  This arrangement requires that both parents co-operate well together to ensure the children are raised well and it works best when both parents have the same values and ideals on how to raise the children.  The parents may even choose to divide the decision making responsibilities.  For example, one parent may take the responsibility regarding education decisions while the other makes decisions regarding health care.

Sole Custody
One parent makes all the important decisions regarding the child.  They may have to communicate with the other parent about the decisions, but ultimately the parent with sole custody does not need the consent of the other parent.  Usually, if there is sole custody the other parent has access.

Split Custody
Each parent has sole custody of one or more children.  This is a rare solution for custody as courts generally do not like to separate siblings.  This type of custody is usually provided where the children are older and can express their opinions about which parent they want to live with.  With that, if the court determines that this opinion of the child should be given considerable weight, they may then grant split custody.

Shared Custody
This term is usually confused with joint custody.  This type of custody is actually an access arrangement and does not indicate which parent has legal decision making power, although custody arrangements can be included here (which helps contribute to the confusion).  You can have shared custody whether or not you have joint custody.  With shared custody, both parents have the child for at least 40% of the time.  Essentially, the child’s time is split evenly between the parents.  This type of arrangement can also impact how much child support is to be paid (see child support post for more details).

Access

Under the s. 20(5) of the CLRA parents are entitled to visit and be visited by the child.  This also includes the right to make inquiries and be given information about the child’s health, education, and welfare.

Types of access include the following.

Reasonable Access – sometimes called liberal or generous
If parents are able to co-operate, then access can be left open and flexible.  This type of access is heavily customizable as both parents simply communicate and negotiate access on an on-going basis as they see fit.

Fixed or specified Access
This will include a detailed access schedule with dates and times for access to be exercised.  This can cover things such as: holidays, long weekends, birthdays and so on.  You can also identify where access will take place and who will pick up and drop off the children.

Supervised Access
This may be required if one of the parents demonstrates the following behaviour:

  1. Substance Abuse;
  2. Domestic Violence;
  3. Parental Alienation.

The person supervising the access can be a relative, friend, social worker, worker at a supervised access centre, or even a Children’s Aid worker.  This kind of access is generally only done on a temporary basis.  If it’s determined that the visits are benefiting the child and the parents respect the terms of the access orders, the access can progress to unsupervised access and can also gradually increase over time.

No Access
This is an extreme result where a parent might not be able to access the child at all.  An order for no access can result where there is serious neglect of the child, abuse, or if the child’s safety cannot be protected even if supervised.

Other custody and access issues

A parent cannot refuse access to the other parent unless there is a court order to that effect.  If a parent does refuse access to another without proper justification, that parent may be found in contempt of court.  If that behaviour continues, the parent refusing access could suffer serious ramifications.

Child support and access are two different things.  A parent cannot be denied access if support is not paid, and support would likely still need to be paid even if there is no access.  It is also possible for a non-parent to be given custody or access, but this must be determined in accordance with the Best Interests of the Child.

Parents have the ability to outline their desires in a Parenting Plan which can be included in a separation agreement.  See our post on separation agreements to learn more.