The Many Basic Principles Of Custody

Date: 03 Feb, 2019| Author: Fred Streiman

The following is an effort to provide a non-exhaustivelist in the most basic and summary of fashions of the laws that apply to custody and access in Ontario.

  1. The primary principle, the primary directive if you wish, is incorporated in section 24 of the Children’s Law Reform Act, the best interest of the child.
  2. Joint custody: one should look at the Ontario Court of Appeals decision of Kaplanis 2015 and Giri v. Wenteges One needs:
    • Evidence of historical communication between parents.
    • Not ordered in the hope joint custody will improve communication.
    • Just because both parents are good, does not mean joint custody is correct.
    • Just because one parent says we cannot communicate is not a bar to joint custody.
    • The younger the child,the more important communication is.
  3. Note in these circumstances, joint custody can also be referred to asshared custody.
  4. The child should have maximum contact with both parents; Gordon v. Goertz 1996 Supreme Court of Canada.
  5. Presumption: regular access by noncustodial parent is in the child’s best interest. It is the child’s right to visit and have an attachment to the noncustodial parent and this right is so important that it is only to be lost in the most extreme of cases; Dadar 1996 New Brunswick, QB.
  6. Supervised access is not supposed to be a long term arrangement for the child. Helpful if require reintroduction to parent or temporary safety concerns; Najjardizaji v. Mehrjerdi 2004 Ontario Court of Justice.
  7. A report by the government agency: The Office of the Children’s Lawyer is not an expert report. The author of an OCL report is a fact finder.  The OntarioCourt of Justice Act, section 112 on behalf of OCL may make recommendations, but these are only a starting point, not the last word. Ganie v. Ganie 2015 Ontario Court of Justice.
  8. Even an assessor’s views under section 30 of the Children’s Law Reform Act is not the last word, but simply one piece of evidence for the court to consider. The court is the final determiner, no assessor or expert is; Woodhouse v. Woodhouse 1996 Ontario Court of Appeal.
  9. Access is right of the child: responsibility of custodial parent to facilitate that access; Scrivo v. Scrivo 2012 Ontario and Tran v. Chen 2012 Ontario.