DSF Announcements Make A Payment Careers Testimonials Blogs
Toronto Barrie Whitby Midland Collingwood Haliburton Other Locations
416-449-1400

LAWYER SEARCH

    • Tag: Child access

    DSF Logo

    Grandparents’ Custody and Access Claims Enhanced by Amendments to Ontario’s Children’s Law Reform Act

    Parents’ separations can mean difficult transitions for children.  Grandparents very often play a special role in these circumstances, providing their grandchildren with stability and unconditional love when they need it most.  These times of transition, however, can also lead to parents and grandparents becoming estranged from one another, such that grandparents’ access to their grandchildren can be abruptly reduced or terminated.  In Ontario alone, an estimated 75,000 grandparents have been denied access to their grandchildren (as reported here).

    Recent amendments to the Children’s Law Reform Act (the Act), in force since January 1 of this year, may help such grandparents.  Section 21 of the Act has been amended to make specific reference to grandparents as among the parties who can bring an application for custody or access.  Subsection 24(2) , which lists factors used to determine the best interests of the child, has been amended to specifically refer to “a parent or grandparent” as among those whose “love, affection and emotional ties” to the child must be considered.

    In context, the amendments are as follows:

    Application for custody or access

    1. (1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.  R.S.O. 1990, c. C.12, s. 21; 2016, c. 23, s. 3; 2016, c. 28, s. 1.

    Merits of application for custody or access

    1. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).  2006, c. 1, s. 3 (1).

    Best interests of the child

    (2) The court shall consider all the child’s needs and circumstances, including,

    (a) the love, affection and emotional ties between the child and,

    (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

    (ii) other members of the child’s family who reside with the child, and

    (iii) persons involved in the child’s care and upbringing;

     

    What’s Changed?

    The amendments consist of only eight added words – fewer characters than your average tweet.  While hardly revolutionary, some things certainly have changed.

    Grandparents were always able to bring applications for custody of, or access to, their grandchildren – they were simply included as “any other person” under section 21.  Likewise, considering the “love, affection and emotional ties between the child” and others, including a grandparent, was always required of judges in determining what custody or access arrangement was in the best interests of the child (section 24).  Now, however, judges must specifically consider these ties between child and parent, and child and grandparent, rather than simply between the child “and those entitled to or claiming custody or access.”

    In other words, the grandparent-grandchild relationship is now expressly considered as a component of the best interests of the child.  While it is too early to tell whether and how the courts might seize on this amendment, one might expect that all else being equal, the courts would be more likely to make an order granting access to one’s grandchild.  After all, to the extent the grandparents play a positive role in a child’s life, it will be difficult to argue that their role should be reduced or halted in the child’s best interests.

    Parental Autonomy Undermined?

    Some of you may be thinking, “Wait, what if the parent has a good reason to keep their kid(s) from their grandparent(s)?  Aren’t parents better placed than courts to decide what’s best for their kid(s)?”  These and other issues were raised during a parliamentary debate.

    To be clear, the amendments do not require that grandparents be given access or custody, just that their unique relationship with grandchildren be considered in making those determinations.   Of course, a parent may have a sound, child-focussed rationale for denying grandparents access to the child.  In such a case, it is the best interest of the child (or grandchild) which will determine the outcome.

    These amendments, appear to be aimed at cases where grandparents’ access is unreasonably withheld.  Consider, for example, loving maternal grandparents, previously heavily involved in a child’s life, who are now denied access because the father, who was just awarded sole custody, has decided that it is no longer necessary for them to continue seeing their grandchildren.  In this all too common scenario, the decision to deny access is not based on the child’s best interests.  Indeed, it may well be harmful to the child.

    This is where the courts have been instructed by Parliament to intervene.  Parental autonomy is important, but the law is clear: the best interests of the child are the courts’ predominant concern.  Given these amendments, the grandparents in question may now have a better chance of asking a court to grant them access in the face of the parent’s objections.

    What happens next?

    These amendments will be welcomed by the thousands of grandparents who might find in them some hope of reuniting with their grandchildren.  Some parents may instinctively object to the courts second-guessing their choices, but, as a society, we’ve long restricted parents’ behaviour where it is seen to harm their children.  Thanks to these amendments, a judge must now specifically consider a grandparent’s important role in a child’s life.

    Are you a grandparent seeking access to, or custody of, your grandchild?  The experienced family lawyers at Devry Smith Frank LLP can help.  For any family law concern, please do not hesitate to contact us at 416-449-1400 in Toronto, 705-812-2100 in Barrie, or 289-638-3171 in Whitby, or send us an email at info@devrylaw.ca.

     

    “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

    By Fauzan SiddiquiBlog, Family Law

    Does Child Support Affect Child Custody or Access?

    Every family law professional, and every family court judge, will tell you that child custody and access are completely separate issues from child support. How child support is determined is completely different from how judges decide who gets custody.  However, there are at least two ways in which child support can influence parenting issues in family court cases:

    1. Failing to pay appropriate child support immediately gives the impression that a parent does not care about the child.  That can affect how a Family Court Judge or Family Arbitrator views that parent’s fitness as a parent.
    2.  Shared Custody/Shared Parenting changes the way Child Support is Calculated. Sometimes people view shared custody as much as a financial arrangement as a parenting arrangement in the children’s best interests. However, things can work out differently than they expect.

    The Importance of Paying Child Support Right From Separation

    Child support is the right of the child.  The right of children to share in their parents’ wealth exists from the moment of separation.  It is a big mistake for a parent to withhold child support to the parent with whom the children primarily reside.  It costs a lot of money to raise children.  They have on-going needs.  When one parent leaves the children with the other parent, that parent must recognize that the children’s needs continue.  That means paying appropriate child support right from separation.  You can use online tools to figure out your base child support obligation.

    When parents do not recognize that their children still have financial needs after separation, by immediately paying appropriate child support, Family Court Judges interpret that as a parent not caring about the children’s needs.  Judges view parents who do not care, or understand, their children’s needs as poor parents – parents who cannot make good decisions for their kids, and therefore should not have custody.  That leads Family Court Judges to believe that parents who do not immediately start paying appropriate child support as parents who should not have custody.

    That, of course, can be an incorrect assumption by the Family Court Judge.  But a parent who starts off giving the Family Court a bad impression of him or her as a parent will have a much harder time in their case.  That parent has barriers to overcome to get the parenting arrangements that he or she wants – barriers that he or she would not have had if she or he had shown devotion to the kids right from the start by paying child support.

    You can make sure you are doing the right things after separation by speaking to a top family law lawyer, and by watching the video below that sets out some of the other mistakes that you need to avoid:https://www.youtube.com/embed/bgIewOxGDlw?rel=0

    Under section 9 of the Child Support Guidelines, child support changes when the children spend close to an equal amount of time with each parent.  The magic number is 40%.  When a child spends 40% of his or her time with a parent, that parent no longer has to pay the table amount of child support, but pays another amount that reflects a fair sharing of the costs of raising that child. The principles for how parents should financially support their children in shared parenting situations were set out by the Supreme Court of Canada in the case of Contino v. Leonelli-Contino. To summarize, when children share their time close to equally between parents, the starting point is that the parents each pay the table child support to the other. However, the way that works out, is that the parent with the higher income pays his or her table amount of child support minus the other parent’s child support obligation.

    For some parents, they want to have the children for forty percent or more of the time so that they can get a “break” in child support.  Several family court judges are suspicious when a parent seeks to move to shared parenting because they want the break in child support.  if the judge believes that a parent is more interested in the break in child support, than in the child’s best interests, that judge will not order shared parenting.  If a parent wants shared parenting out of a since interest in being very involved in the children’s lives and protecting their interest, that parent may actually want to offer to pay full child support so that the judge has no doubt about that parent’s motives and feels safe ordering shared parenting.  In addition, a parent who wants a shared parenting regime should watch the video below, which sets out when shared parenting, and other parenting arraignments, work best for the children, to make sure that the plan is best for the children and the judge will see that too:https://www.youtube.com/embed/i8y37J0ipzU

    There are some additional consideration regarding child support in shared parenting situation.  First, in Contino, the Supreme Court said that the ‘set off” of child support was only the starting point.  If that approach did not result in the parents sharing the costs of raising the children in proportion to their respective incomes, then the Family Court should make a different child support order that does.  For example, a Family Court Judge will not order “set-off” or reduced child support, where one parent continues to bear the bulk of the cost for raising the children.  Set-off only works where both parents are not only sharing parenting time, but also sharing the costs of raising the children.

    A second consideration regarding child support in shared parenting situations is that it does not always save money.  Kids can be expensive.  When the children are being raised in two homes instead of one, the children’s expenses are often not divided in two, but multiplied by two.  Each child may need two beds, two sets of clothes, two TVs, two gaming systems, two bicycles, two sets of toys, and the list goes on.  In shared parenting, a parent may find that child support goes down, but the extra expenses that parent pays are much more than the decrease in chid support.  Many parents in shared parenting think it would be “cheaper” to have the children live with the other parent and just pay child support, but cannot do that because of how involved they are with their children.

    A third consideration is that in several shared parenting scenarios the support paying parent may pay more support than when the children have one primary residence.  This is particularly true when one parent makes a lot more than the other.  In that situation, the “set off” of support may not result in much of a decrease in child support.  However, because to the adjustments to tax benefits and deductions, and other cash flow considerations, when the Spousal Support Advisory Guidelines are applied, the decrease in child support is more than made up fore by an increase in spousal support – and spousal support may not necessarily end when a child reaches 18 or finishes school as is the case for child support.  It is important to have a good family lawyer do the support calculations for you to figure out the most prudent way to arrange support in light of your family’s circumstances.

    Child Support and Child Custody Are Still Separate Issues

    Despite the above, child support and child custody are not legally linked.  So, except for the circumstances described above, parents should not try to link them.  For example, a parent cannot deny access because the other parent is not paying child support. Similarly, a parent is not “entitled” to see the children just because he or she is paying child support.  How much time a parent spends with the children and when is determined based on what is in the child’s best interests, not based on how much child support that parent is paying,  And telling the children how much support you are paying is never a good idea.  That is involving the children in adult issues, which can only be harmful (and judges do not let parents see children if it is going to cause harm.)

    Judges will not order that the wealthier parent get the children because he or she will be able to give the children a better lifestyle.  Child support is supposed to permit children to share in the wealth of both their parents.  Saying the other parent is “too poor” to raise the children properly is a pretty good way to anger a judge and lose your case.

    Finally, paying child support does not mean that a parent gets to dictate how the other parent raises the children, or even how the receiving parent uses the child support.  Unless a court or arbitrator decides otherwise, what a parent does during his or her “parenting time” is not the business of the other parent.  After separation, parents do not get to control how each other uses their money, including child support.  If a parent is using child support money to buy drugs or alcohol, or gambling it away, then the support paying parent may have a case to say that the receiving parent is a bad parent because of addiction issues.   But, that determination is based on each parent’s parenting ability and the best interests of the children – not on a consideration of child support.

    There are a lot of things to consider in each of child support and child custody.  There are more things to consider, and things get more complicated, when the two issues interact.  In addition, a lot can change depending on the specifics of your situation.  In these situations, you really need to set up a consultation with a good family lawyer to learn your rights and obligations in your specific circumstances.  Make an appointment to meet with Certified Specialist in Family Law, John Schuman, by calling 416-446-5847 or emailing him.  We respond to all inquiries promptly.

    By Fauzan SiddiquiBlog, Family Law