Going through a separation or a divorce is a stressful and emotionally draining process, especially if children are involved. In family law, custody and access are commonly litigated issues. Custody is the right to make decisions on behalf of a child, and to have care and control of the child. Access is the right to communicate and spend time with the child and may include the right to obtain information about a child.
Historically, child custody law favoured one parent over the other. In the 19th century, English family law gave custody of children to the father after a divorce because of the father’s ability to provide for the child. Mothers had few rights and obligations. In the 1930’s to the early 1970’s, courts began favouring mother’s custodial rights. For example, the “tender years” doctrine held that young children under the age of 4 were better off in the custody of their mothers.
In Canada, the “best interests of the child” is now the only consideration in custody and access cases. The interests or claims of adults involved in the dispute are irrelevant. The “best interests of the child” standard is difficult to define precisely and is often applied contextually. However, it is generally agreed that children benefit from meaningful relationships with both of their parents and that inter-parental conflict is not in a child’s best interests.
Generally, courts will encourage equal parenting opportunities. This means that withholding access from another parent requires significant proof that doing so is in the best interests of the child. Maintaining the “status quo” or disagreements with parenting style are likely not enough to justify withholding parenting time. Similarly, a parent’s past behaviour is not enough to justify withholding equal parenting opportunities, unless the behaviour impacts their ability to parent.
However, courts may consider that limited access is in the best interests of the child based on the evidence, especially in high-conflict cases. In a recent Ontario Court of Appeal case, the father’s appeal for increased access was denied after the Court considered evidence that the children (age 10, 15, and 17) repeatedly expressed the opinion that they did not want further contact with their father (Mattina v Mattina, 2018 ONCA 641).
Ultimately, parents do have some control over the procedure in which cases are decided and it can be difficult to distinguish whose best interests are being represented in court. Parents decide whether to bring an application in court, what evidence to introduce, and whether a matter should be re-litigated until the children are no longer minors. Custody and access decisions are never final. A significant change in circumstances can lead to a court order being reviewed again.
The federal government has recognized the challenges of litigating custody and access issues and recently amended the Divorce Act to encourage parents to focus on the needs of their children, rather than their own interests. The legislation will remove the terms “custody” and “access” in favour of more child-focused terms such as “decision-making responsibility” and “parenting time.”
The new legislation will also introduce a non-exhaustive list of criteria when considering the best interests of a child:
a) The child’s needs, given the child’s age and stage of development;
b) The nature and strength of the child’s relationship with each spouse, siblings, grandparents, and other important persons;
c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
d) The history of care of the child;
e) The child’s views and preferences;
f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
g) Any plans for the child’s care;
h) The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate;
i) Any family violence;
j) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.
The amendments to the Divorce Act will come into force and have legal effect in July 2020. Note that the Divorce Act does not apply to common-law relationships, in which provincial or territorial laws still apply.
While it remains to be seen how the “best interests of the child” principle will be applied following the amendments to the Divorce Act, it remains clear that a child-focused approach to custody and access is paramount. Parents dealing with a separation or divorce proceeding should carefully consider how to protect their child’s best interests, including facilitating equitable parenting opportunities and reducing inter-parental conflict as much as possible.