What is a Father Entitled to Regarding Child Custody & Access?

Learn what rights a father has with child custody and access in Ontario

There is no law distinguishing the rights of a man, as a father, and a woman, as a mother, when it comes to questions of child custody and visitation rights. However, there are certain social and historical stereotypes that persist and that may sometimes be difficult to overcome in certain factual scenarios.

 Joint Custody Is Now the “Default”?

When parents split up, joint custody is often the starting point before considering the unique contexts and facts of a case. This means no presumptions are to be made about the parenting skills, parenting experience, personality, availability, or nurturing nature of a parent based on sex or gender. Each parent is given a say in the major life events of the child.  Further, there is no one type of custody arrangement that, in a vacuum, is considered preferable to others. The best interests of the child are to be considered first and foremost.

 Challenges Often Faced by Men as Fathers

It is true that decades ago, men were almost always the primary “breadwinners” in the family, often spending the majority of time at work while women stayed home with the children. Even if a mother held a part-time or full-time job, the presumption was generally that the woman would go on maternity leave leading up to and following pregnancy. Oftentimes, previously working women would not return to the workforce following maternity leave.

However, times have changed. Due to a social focus on gender equality, women’s increasing presence in the workforce, women more often seeking professional education, and economic times that have led to the need for dual incomes, women increasingly spend as much time at work as men.

Furthermore, the way in which we work looks very different in the digital age. With more and more people working remotely or from home, men have an increasing presence inside the home. Lastly, with both parents being equally entitled to take parental leave under Canadian law (though mothers retain the unique right to maternity leave), more and more men are exercising this option.

Despite all of this, the assumption that the man is less available to his children is a stereotype that persists.

As a father, your family lawyer can assist you in analyzing and gathering relevant evidence to support that your perceived “lack of availability” is not an issue, and how you past behaviour supports the role you have played in your children’s lives.

How A Father May be Granted Sole Custody

Despite that stereotypes persist, the court will listen when adequate evidence is tendered to support that a father has had as much, or more, involvement in his children’s lives as their mother.

In the decision Velvet v. Phillips, 2010 ONSC 5596 (CanLII), where both the mother and father sought sole custody, and joint custody did not appear to be an effective option, the father, who was caring for the children at the time, was granted sole custody.

The court compared and contrasted the parents’ respective degrees of involvement in the children’s lives, and found that the father was far more in tune with the medical needs of one of his children with a seizure disorder, and more concerned and involved with his children’s progress in school. Further, the father gave evidence of a support network — his parents, sister, and oldest son — to assist with caring for the children in his absence.

By contrast, their mother appeared far less knowledgeable about her children’s health issues and progress in school, and had previously failed to strictly adhere to the previous access agreement that was in place.

How a Father May Lose Custody

Similarly, the court will listen when a father has failed to provide adequate support for his children, or has shown troubling patterns of behaviour in relation to his children.

In Kemp v. Helfrich, 2009 CanLII 34024 (ON SC), a father, who had a criminal record for violent offences, was denied both custody and access rights for a variety of reasons. While one of these reasons was a pattern of alcohol and drug use, including in his children’s presence, the court also focused on the father’s manipulation and coercion of his children. On more than one occasion, he coerced one of his daughters to leave her mother. Further, he neglected to attend to court orders requiring him to disclose his income for the purposes of assessing his ability to support the children.

Overall, courts take very poorly to the behaviour of parents who use coercion or manipulation to damage the relationship of their children with the other parent, and who disregard court orders and existing access arrangements.

Contact Epstein & Associates, Child Custody Lawyers in Barrie & Newmarket

If you are entering a separation and are concerned about custody and/or access of your children, don’t wait any longer – contact us. Issues of custody and/or access in Barrie & Newmarket often need legal intervention and the sooner it comes, the better it may be for your children in the long run. For help as a father seeking custody rights, call our Barrie family lawyers today at 1-866-463-2266.