DEALING WITH CHILD CUSTODY & ACCESS DURING DIVORCE

Divorce is always associated with stressful events in life. Truthfully, divorce does not have to be ugly. It is never pleasant to lose a friend, business partner or co-worker, but you have to deal with it. That’s life.

If you are separating from your spouse and you have children, then the chances are that your ex-spouse will always be part of your life. It is more important to make your ex-spouse your best friend. If not, you will spend the next few years battling it out in Court.

We at Trigil Law have prepared a few questions for you to understand the basic terms surrounding the matters dealing with custody and access.

What is the law for custody and access issues?

In Ontario, the Divorce Act and the Children’s Law Reform Act, both govern the matters related to custody and access.

The Divorce Act will apply in the case of separated parties seeking custody and access, along with a divorce. However, if they are not seeking a divorce or the parties are not married, the Children’s Law Reforms Act will apply.

What is the difference between Custody and Access?

Custody refers to the decision making of the child in question. The parent who has custody has the right and responsibility to make major decisions for the child. The decisions must be made in the best interest of the child.

Access includes the right to visit and be visited by the child. The access parent has the right to make inquiries and to be given information as to the health, education and welfare of the child.

When one parent has sole custody, the other parent has access typically.

What are the Major Decisions?

Major decisions concerning the custody of children include education, religion, health care, and extra-curricular activities.

Who may file for custody of a child?

As per the Divorce Act and Children’s Law Reforms Act, anyone can apply to a Court for custody of, or access to, a child. However, under the Divorce Act, a non-spouse may make an application for a custody or access order only with the permission of the Court.

Third parties include step-parent, grandparent, or others.

What is the Maximum Contact Principle?

The maximum contact principle states that a child should have as much contact with each spouse, in the best interest of the child.

In making an order for custody or access, the Court must consider the maximum contact principle.

What is Sole Custody?

Under this arrangement, the parent who has sole custody has the legal right to makes all major decisions for the child. Generally, the child resides with the parent who has sole custody.

What is Joint Custody?

The parties may agree to this arrangement through a separation agreement, or it may be ordered by the Court. Under the Joint Custody arrangement, the parents share the rights and responsibilities of decision making for the minor child, even though they live apart.

The child may live equally with both parents or primarily with one parent. Joint custody is not about the time the child spends with each parent. It is about decision making.

For arrangements where responsibility is shared, the cooperation of both parents is necessary.

What is Shared Custody?

In a Shared Custody arrangement, the child lives with each parent for at least 40% of the time. Shared custody is used to determine Child Support.

What is Split Custody?

In a split custody arrangement, one or more children live with either parent for more than 60% of the time. Split custody is used to determine Child Support.

What is Supervised Access?

Supervised access is ordered in situations where there is a possibility that the child is at risk due to a parent’s lifestyle. Factors that are considered include; addiction issues, health problems or violent behaviour, which may hamper the parent’s ability to care for the child.

Supervised access can take place at an access centre or be supervised by a person other than the parents.

We hope you found the above information helpful.

If you are going through a divorce and wish to deal with it in an amicable matter, then feel free to contact Trigil Law. Our team can help you resolve your matter outside of Court, saving you time, money and stress.

The Best Divorce Lawyer In Ontario

Harvey Specter and The Lincoln Lawyer are fairy tales. As entertaining as they are, lawyers like them don’t really exist… at least until the law changes and it becomes legal to blackmail judges, lawyers, and the public.

A lot of people watch TV shows and films and base their search for a lawyer on the idea of what a lawyer “should be” according to the media they’ve watched.

Over the past decade of my legal practice, I have heard numerous times from clients that they want a “lawyer that is going to fight for them” or “they need a pitbull or shark to tear up the other person”.

Pitbull and shark type lawyers only really exist on TV. If you found one in real life, you would be well recommended to run away. They are of no use to you. The only thing someone hiring a lawyer should be concerned about is winning a case. A lawyer that wins in the courtroom is the one that knows the case, understands the issues, and presents a sound LEGAL argument. Whispering the law is louder than shouting nonsense. Contrary to how we’re portrayed on TV, confident lawyers do not need to yell.

What makes the Best Divorce Lawyer?

When searching for a family lawyer Toronto, you want someone that articulates well, listens to your issues, and who will provide you sound legal advice. You need a lawyer that is going to be technical, competent, and confident in the courtroom. Plain and simple!

Family Law Lawyers

In family law disputes, lawyers deal with various issues ranging from legal to emotional. There is a lot of sadness and sensitivity in the area of family law. This is another great reason you do not want a shark as your lawyer. You need a lawyer that is going to handle their client and their emotions in a professional and humane manner.

An effective family law lawyer works to broker peace between all parties involved. This does not mean the clients have to reconcile – it simply means working on issues in a peaceful manner. Brokering peace is very important in today’s era, due to the shortage of judges and court resources especially in the area of family law. Having a competent and confident lawyer – rather than a shark – is important as they can think outside the box and help suggest other solutions to resolve matters, sometimes referred to as alternative dispute resolution.

When dealing with family law disputes you have two legal systems to choose from.

1. Public – the court system

2. Private – mediation and arbitration.

Sometimes the court system is the only option, but the majority of cases can be easily dealt with through mediation. In the area of family law, mediation is a great tool. It can help parties deal with their family law dispute outside of court in a timely and more cost-effective manner. For this reason, mediation is oftentimes sought out prior to things progressing to the point where a court ruling is required.

Approaches we apply

All divorces don’t have to be ugly, expensive battles. At Trigil Law, we believe in achieving the best outcome for our clients using the best approach available to them, whether that is through mediation, litigation, or lawyer to lawyer negotiation.

Benefits of working with a Family Law Lawyer at Trigil Law

At Trigil Law, you have the benefit of having a team of lawyers behind you.

Our lawyers, collectively, have decades of experience in family law.

When we retain a new client, we engage in a cost/benefit analysis to determine if litigation or mediation is the better route.

When dealing with a matter that involves young children, we work to establish a plan for custody and access at the earlier stages to ensure the best interests of the children are prioritized.

Our firm is a full-service firm, and unlike family law only firms, we have experienced real estate lawyers and Wills & Estate lawyers who are able to provide expertise on other matters which are closely related areas of law and they can affect the separation and divorce process.

Don’t be shy to connect with us to learn more about how we can help you with your family law matter.

Do you always need to go to court to get divorced?

Not always, you have options, which are less stressful, that give you more control, and are way cheaper.

In almost every situation where a client retains a lawyer for help in a family law matter, a detailed discussion on the importance of negotiation is crucial and should almost always be explored. This is even the mandate by the law society. Even judges will frequently question parties throughout the proceeding if efforts to negotiate were commenced.

When can you engage in negotiations?

Parties are able to engage in meaningful negotiations at any time, even if a court case is underway. Sometimes it is preferable to engage in negotiations only after a court case has been initiated. This allows the parties to negotiate while they wait for their court date, failing which the parties have the benefit of upcoming judicial intervention.

Parties are also able to commence negotiations prior to starting a court case. Doing so affords the parties the benefit of resolving all issues without the additional stress, time, and expense of preparing court documents. However, it must be noted that negotiations can take some time. As there is lot of going back and forth over the financial statements, agreeing on a parenting plan (if you have children) and other factors that may be important to the parties.

Sometimes in order to put everyone in the frame of mind for effective negotiations, the

Family Law team at Trigil Law may suggest initiating a lawsuit first and then use the time preceding the case conference (first court attendance) to try and negotiate all issues under a deadline with the hopes that the case does not have to proceed to trial.

Doing it yourself?

There is no requirement in the law that you must hire a lawyer. As people fix their own roofs or change the oil in their car, you are also allowed to represent yourself in court. I think that the best analogy though is closer to wanting to finish your own basement; you may never actually start, and when you do, you probably will never finish, and if you do finish, it will either take you 3 times as long as a professional or you will likely miss many details and end up with more headaches than you started with.

Whether you represent yourself or a lawyer is representing you, the process is the same; You are required to know the area of law, file the documents with the same deadlines, serve the parties appropriately, do your case law research and much more. If you want to represent yourself you will need to familiarize yourself with the Family Law Rules https://www.ontario.ca/laws/regulation/990114. You are expected to know these whether you are a lawyer or self-represented (representing yourself).

As a lawyer, I always recommend you should get help because what you say in family court matters. Your words may impact your children, your future financial needs, and certainly your own personal future. However, If you are determined to represent yourself or are unable to afford a lawyer then think about getting a consult from a lawyer along the way.

My name is Harjot and I am fluent in English, Punjabi, and Hindi. You can reach me at harjot@trigillaw.com or (647) 675-7330.