What is “Custody”? And Why Do Mediators Need to Know?

Images by Kat and Steve Smith – KS Photography

This week we are teaching our 30-hour course in Family Law for Family Mediators, Parenting Coordinators and Arbitrators. It is a comprehensive overview and is good training for anyone who wants to know more about family law.

We start the course discussing what comes first; changes in law or changes in society?

For example, there is a social and political trend away from the concepts of “custody” and “access”—the terms currently embedded in the law of Ontario– and towards concepts of “parenting time and decision-making”. From a mediator’s perspective, this trend is good in many cases because it gives us more to work with. Custody and access have limiting legal definitions and mediators often prefer to work with more fluid concepts to help parties craft “win-win” solutions.

However, not all cases suit fluidity. In situations of extreme high parental conflict, potential abduction, child abuse, or parental alienation or harassment, clearly defined terms are essential to protect children.

So what do the terms mean?

“Custody” is defined in Ontario’s Family Law Act as follows:

“A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child”.

Access is:

“the 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 be given information as to the health, education and welfare of the child”.

In other words, custody is the right and responsibility to make decisions affecting the child and access is the right to visit with and be informed about the child.

The Act provides that a child’s parents are equally entitled to custody of the child but also provides the factors a court will consider in deciding whether . But if parents separate and the child lives with one of them only, with the consent of the other parent, that other parent to have custody is suspended unless a separation agreement or court provides otherwise.

This is often why, when parents separate, neither will leave the house without an agreement or court order for shared custody.

It is important to know that these terms have nothing to do with how much time the child spends with either parent. The concept of residential schedule relates more to the determination of the correct amount of child support to be paid. Although the term “shared custody” is used in the Child Support Guidelines, it should not be confused with the meaning of custody in the Family Law Act.

There is ongoing pressure from various groups to have the law changed so that the concepts of “custody and access” are eliminated and replaced with a presumption of equal and joint custody. However, many believe that the law, in essence, already provides such a presumption and that the Act as currently drafted achieves the right balance to protect the best interests of the child.

About Hilary Linton

Hilary Linton is a Toronto lawyer, mediator, arbitrator and teacher. After litigating family and civil disputes for 14 years, she started Riverdale Mediation which is internationally recognized for high quality dispute resolution services and innovative ADR training. Teaching hundreds of adults every year, Hilary and her team at Riverdale have designed a wide range of courses. Hilary has been honoured with the inaugural James G. McLeod Professorship in Family Law at Western University Law School, and the Ontario Bar Association Award of Excellence in ADR in 2014. She has taught many ADR courses as an adjunct professor at Osgoode Hall Law School, Western Law and Toronto Advanced Professional Education.

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