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The Dos & Don’ts in Custody Disputes

Divorce can be a difficult process that is often filled with emotional, financial, and legal challenges that can impact every area of your life. The process can get even more complicated when children are involved, as disputes involving them can sometimes result in long and difficult custody battles.

Custody Disputes in Ontario

Custody disputes in Ontario can be tricky. One misstep, one bad comment, and one poorly thought-out decision can kill your chances of getting a favorable custody arrangement. But don’t worry – we’re here to guide you!

In this article, we will explore the key dos and don’ts in custody disputes along with other vital information you need to know!

Child Custody in Ontario – A Quick Overview

To be precise, ‘custody’ refers to the arrangement made by the court for the care and control of a child after a divorce or separation. There are two kinds of custody:

  • Legal Custody is the right to make significant decisions about a child’s life. These decisions might cover several areas, including the child’s upbringing, education, healthcare, and religious instruction.
  • Physical Custody, on the contrary, involves the physical care and supervision of the child. It addresses two essential concerns:
    • Where will the child reside on a day-to-day basis?
    • Who will be responsible for their everyday needs?

Photo Source: Freepik

Types of Custody Arrangements

Here are the 4 major types of custody arrangements:

  1. Sole Custody: In such a custody arrangement, one parent retains the independent legal authority to make major decisions about the child’s upbringing. The child lives with this parent, and the other parent may be granted visitation rights.
  2. Joint Custody: This type of custody obliges both parents to bear equal responsibilities for decision-making. The child, however, mainly lives with one parent. Such a type of custody requires a high degree of cooperation and communication between the parents.
  3. Shared Custody: It is a form of joint custody where the child spends at least 40% of the time with each parent. The arrangement supports frequent and substantial interaction with both parents.
  4. Split Custody: Split custody might apply when there are multiple children, and each parent takes primary custody of one or more children. This is typically arranged based on the best interests of each child.


Criteria Used by Courts to Determine Custody

When determining custody, Ontario courts look at what type of arrangement would be in the best interests of the child. Here’s what they consider:

  • The Child’s Needs: First, the court looks at the child’s physical, emotional, and psychological needs. Officials assess which parent can provide a stable, loving, and supportive environment.
  • Parent-Child Relationship: The strength and quality of the child’s relationship with each parent are important. Courts look at how each parent has cared for and interacted with the child over the years.
  • Parental Roles and Responsibilities: Each parent’s involvement in the child’s daily life, including school, extracurricular activities, and healthcare, is assessed. Generally, courts prefer arrangements that ensure continued support from both parents.
  • Child’s Preferences: Depending on the age and maturity of the child, their preferences may be considered. Courts often consider the child’s own wishes if they are old enough to make a reasoned choice for themselves.
  • History of Family Violence or Abuse: Any history of family violence, abuse, or neglect by either parent is critically evaluated because protecting the child from harm is a paramount major concern for legal bodies who are making custody.

The Legal Process for Transferring Custody in Ontario

The legal process of custody transfer is quite complex in Ontario and it is crucial for parents to have a clear understanding of how it works.

Here’s a quick rundown of the legal process for transferring custody in Ontario:

  1. Start the Process: It all begins with filing an application for custody and access. This can be done as part of a divorce or as a separate application for only custody. The application must be filed in the nearest family court and must state the desired custody arrangement and the reasons for it.
  2. Serve and Respond: After filing the application, it must be formally served to the other parent so that they have an opportunity to respond. They might agree with the custody proposal, contest it, or suggest an alternative.
  3. Case Conference: A case conference is the first step in the courtroom process. Both parties, their lawyers, and a judge will meet to discuss any issues without making any official decisions. The goal is to identify the areas of agreement and disagreement while exploring settlement options.
  4. Settlement Conference: A settlement conference is a subsequent mandatory meeting with the judge if the parties cannot come to an agreement.  The judge’s goal is to first see whether some or all of the case can be settled permanently, without going further in the court process.  Their second goal is to make sure that all the information and documents that a trial judge needs to make a decision on the case have been exchanged and that the case is ready to go to trial.
  5. Trial: If no agreement is reached at the case conference, the matter will go to trial. At trial, each parent presents their evidence and arguments for their side, and the judge decides based on the child’s best interests.
  6. Custody Orders: Once a decision is made, the court will issue a custody order outlining the custody arrangement and access schedule. This is a legally binding document.

Dos in Custody Disputes

Want to win a custody dispute? Here are some things you should consider when trying to lean the judge’s decision in your favor:

  • Prioritize Your Child’s Well-being: Always keep your child’s best interests at the forefront. Demonstrating that you are focused on their emotional and physical well-being can influence the court’s decision in your favor.
  • Maintain Open Communication: Communicate openly and respectfully with your ex-spouse. Cooperative co-parenting is viewed favorably by courts and shows that you are willing to work together for your child’s benefit.
  • Follow Court Orders: Adhere strictly to all temporary court orders and agreements. Non-compliance can negatively impact your credibility and your case. If any issues arise, address them through proper legal channels rather than taking matters into your own hands.

Don’ts in Custody Disputes

Along with positive actions, there are also critical pitfalls that you should avoid. Missteps can negatively impact your case and ultimately affect your child’s future.

Here are the key don’ts to avoid when dealing with custody disputes in Ontario:

  • Disrespecting Your Ex-Spouse: Avoid speaking negatively about your ex-spouse in front of your child. This can be emotionally damaging to your child and can reflect poorly on you in court. Courts prefer parents who promote a positive relationship between the child and the other parent.
  • Making False Allegations: Do not make unfounded accusations against your ex-spouse. If found false, allegations can severely damage your credibility in the eyes of judges.
  • Substance Abuse: Never use alcohol or drugs, especially in the presence of your child. Substance abuse can severely impact your custody case and your child’s safety.

What Can Be Used Against You in a Custody Battle?

Remember, your ex-spouse is aware of you and your living conditions. This familiarity can be leveraged against you during custody battles court in the following ways:

  • Alienation Attempts: Trying to turn the children against the other parent, which is known as parental alienation, can backfire dramatically. Courts view this behavior as harmful and detrimental to the child’s emotional well-being.
  • Unstable Living Conditions: Courts prefer stable and safe environments for children. Any evidence of frequent moves, inadequate housing, or poor living conditions can be used against you in custody proceedings.
  • Criminal Record: A criminal record can be a significant hindrance in a custody battle as the court will carefully consider your criminal history and its potential impact on the child’s safety and well-being.

Wrapping Up

It is crucial to approach custody disputes with a strategic mindset. By adhering to the recommended dos and avoiding the detrimental don’ts, you can protect your child’s best interests and work towards a fair resolution between all parties.