When parents separate, legal arrangements need to be made about when and how the children will spend time with each parent and about who has responsibility for making decisions about them.
Ontario’s Children’s Law Reform Act uses the term custody to refer to decision-making responsibility. Under this law, a parent with sole custody can make decisions about the child’s upbringing without involving the other parent. When parents have joint custody, they make major decisions together. A custody and access order sets out where the children spend most of their time (primary residence) and when and how they see the other parent (access) as well as how child-related decisions are to be made.
The federal Divorce Act, which was revised in June 2019, with revisions to come into effect in March 1, 2021, no longer uses these terms. A parenting order sets out the time the children are to spend with each parent, which is called parenting time as well as decision-making responsibilities.
Under both pieces of legislation, if there are concerns that either parent may not be able to care properly for the children’s the time they spend with that parent may be supervised or, if it is not safe for the mother to be with the father when the children are exchanged, there can be an order for supervised exchanges.
Under both the Divorce Act and the Children’s Law Reform Act, all decisions related to the care of children are made using the best interests of the child test. The criteria are slightly different in each piece of legislation. The Divorce Act, but not the Children’s Law Reform Act, also includes a broad definition of family violence to assist courts in determining what is in the best interests of the children.
When leaving with the children
Abusive men often use arrangements for the children as a way to try to maintain control over or intimidate their ex-partner. It is very important for a woman with children leaving an abusive relationship to move quickly to establish legal arrangements for them to prevent the abuser from claiming she has abducted them or from simply taking the children and refusing to let her see them.
This is especially true for women whose ex-partners may be in a position to remove the children from Canada. While the Hague Convention offers some protection against international abductions of children, it does not apply in many parts of the world, and even where it does apply, getting a child back from another country is a time-consuming, expensive and complicated process.