Do you know a woman who is being abused? A legal rights handbook
How does the court decide who gets custody?
The judge looks at what is in the best interests of the children when deciding custody, residence, and access. They will consider things like:
- who has been the main caregiver for the children
- who the children are closer to
- how you and your partner plan to care for the children in the future
- who can offer the most stability for the children
- how each of you will help the children maintain their relationships with the other parent
Family courts believe that it is usually best for children to have as much contact as possible with both parents. Depending on the situation, including the children's ages, the judge might want to hear their wishes too.
Important: The judge must also consider whether the parent who wants custody or access has been violent or abusive to their partner, family member, or any child in the past.
For more information, see the CLEO resource Separation and Divorce: Child Custody, Access, and Parenting Plans.
If you do not have custody, you still have a right to see your children and to get information about them, unless the court has refused you access. Most judges do not deny access to a parent unless it is clear that the parent has abused or neglected their children and that the children are still at risk. In some cases, a judge might also deny access in other situations, such as if an older child has a strong wish not to see that parent.
If you have custody of your children, you cannot deny access to the other parent unless the court orders that there be no access or that you can decide if there is access. Otherwise, you cannot stop the other parent from seeing the children at arranged times unless you think it would not be safe. For example, if your partner has been drinking or using drugs, you can stop him from driving the children somewhere. If you deny access, contact your lawyer or a duty counsel at your local family court right away.
You cannot deny access because the other parent has not paid child support.
If you are worried about your children's safety, a judge might order supervised access or supervised access exchanges. There are more than 50 supervised access facilities in Ontario. To find if there is one in your area, go to www.attorneygeneral.jus.gov.on.ca/english/family/supcentres.php. You can also call 1-877-661-9977 or 416-212-2028 in Toronto. You can often find brochures about supervised access at the court.
Supervised access: a kind of access where someone else watches when a parent visits with their child. The purpose is usually to make sure the child is safe.
Supervised access exchanges: when someone watches a parent pick up or drop off the child, but does not watch the access visit. The purpose is usually to reduce conflict between the parents, or to protect one parent from being abused by the other parent.
If there is no supervised access centre in your area, you might have to find and agree on an appropriate supervisor. This could be a relative or friend that both you and your partner trust. Many women have difficulty finding and agreeing on an appropriate supervisor. Speak to your lawyer if you think this will be a problem.
If your children are in school or daycare, and you think your partner might try to take them from there without telling you, talk to the staff immediately. Give them a copy of any court orders. If you have a custody order that says your partner cannot pick up the children at school, the staff should refuse to let your partner take them. If the order says that he has access to the children on certain days at specific times, the school should not give them to him at any other time.
If the court has made a custody or access order and your partner is not cooperating, a lawyer can help you enforce the order or change its conditions.
Courts can also make a non-removal order.
Non-removal order: a type of court order that says that one or both parents cannot take a child out of a certain area, such as Ontario.
If your partner has threatened to leave with the children, see a lawyer as soon as possible. Ask your lawyer about getting a non-removal order.
If you are afraid that your partner might take the children out of the area immediately, and you do not have time to find a lawyer, go to the nearest family court or Ontario Court of Justice. Ask for help from the duty counsel or advice counsel lawyer.
If you leave your home and can do so safely, try to take your children's passports, permanent residence cards, and other travel documents with you.
Taking the children out of Canada
Neither parent can take the children out of Canada without an agreement with the other parent or a court order. If your partner has threatened to take the children out of Canada, you should see a lawyer right away. If you think he might have already taken them out of the country, call the police immediately.
The Hague Convention is an international law that provides some protection against child abduction. However, it does not apply in many parts of the world. Even where it does apply, getting a child back from another country is time consuming, expensive, and complicated.
You can find helpful information about international abduction of children at www.travel.gc.ca/assistance/emergency-info/child-abduction-welfare.