Why No Ontario Family Court Judge Will Give You Custody of Your Kids

For many years, custody of the children was the big prize in any divorce or separation. Especially with the introduction of “no-fault divorce”, custody of the children was important because it showed who won the divorce. For separating parents, getting custody and controlling the other parent’s “access” has been the ultimate goal, which superseded other considerations, like maintaining an amicable relationship, being able to co-parent, or addressing the children’s needs. With the introduction of the Child Support Guidelines, custody became even more important because it also meant entitlement to child support and even sharing parenting meant getting less child support. The huge importance separated parents have placed on getting custody is indisputable. However, parents who go to court to get custody of the children are certain NOT to get it.

The idea of child custody has become controversial over the last several years. Many, including groups concerned about domestic violence, those concerned about parental rights and people who favour traditional parenting feel child custody is an important concept because it is important for children to have a primary parent who makes all the decisions for children, especially after separation because the warning parent cannot make decisions together that focus on the children’s best interests. So, one parent needs complete control over the children.

For those concerned about children’s rights and doing what is in the children’s best interests, the concept of custody of the children is one that has many problems. The idea of having “physical custody” of the children came from the idea that children were essentially the property of a parent, not human beings. “Parental Rights” were thought to be inalienable, until separation, then the parent who had custody had total control over the children. The idea of child rights did not exist because children are not mature enough to have rights.

The term “custody” evolved in Canadian Family Law. Eventually, it came to reference not having physical custody of the children, which is what almost everyone thought, to who makes decisions for the children. The parent who had custody got to make those decisions, which meant caring for the children for most of the time, while the other parent had “access”, which meant that the parent could “visit” with the children, but had very little say in the lives of the children. The Child Support Guidelines also provided that the parent with whom the children lived got child support, which added to the significant gulf between the parent who had custody and the parent who did not.

Getting custody came with many rights, it was more than just a trophy. It was worth fighting over – especially when one parent could make decisions for the children in a way that marginalized the other parent in the children’s lives. Often non-custodial parents felt like “tourists” in their children’s lives. Even though “access parents” had extensive rights under the Family Law statutes, being called an “access parent” became a term of shame that somehow seemed to reflect incompetency in parenting regardless of that parent’s parenting skills and love for the children.

So, the parents went to Family Court to go to war with the other parent to get custody. Parents spent massive financial and emotional resources getting custody. Often that drained all the family’s savings, and the children’s university savings, it also left parents emotionally exhausted. We now understand that the exposure to that high level of conflict, not the divorce or separation itself, resulted in serious harm to the children. Check out the Family Law Podcast episode on whether going to court is a good choice.

However, Ontario (and Canadian) Family Law clearly set out that when judges decided who got custody, they were no longer considering parental rights, nor the importance of maternal instinct in raising children. The test under the law became looking at what was in the best interest of the children.

The term “child custody” stopped referring to who had the children physically with him or her, and instead referred to which parent made decisions regarding children. With whom the children spent their time because of a separate issue from “child custody”. There were orders for “custody”, which addressed who made decisions and orders for where the children spent their time that could no longer be unilaterally changed by the parent who had “custody.”

But even so, family law professionals, and many judges, started to realize that child custody was an antiquated term. The mere idea of child custody focused on what the parents wanted and not what the children needed.

For at least a decade, parenting professionals and parenting mediators have avoided the term custody and have instead looked at what the children needed. The focus shifted to children’s lives and what they needed – where they needed to be and when, what important issues they faced and who should make decisions about them, and what parent was available to take on responsibilities related to the children. Ideally, parents would cooperate to meet their children’s needs, even when one parent had to take on more of the responsibility. But, where parents could not cooperate, parenting professionals, parenting mediators, and some judges would still avoid custody orders by creating parenting regimes with extensive terms that set out, sometimes in minute details, how the children’s needs, including their need to spend time with each parent, but also their needs to attend school, get healthcare and participate in activities, would work.

A lot of lawyers, judges and family professionals came to the conclusion that focusing on child custody meant focusing on the parents, but children really needed the focus of separated parents to be on them.

So, in 2019, the Federal Government, followed by the provincial governments, made big changes to the Divorce Act and other family laws to abolish the terms custody and access and change the focus of “parenting orders” onto the children and their needs.

Judges now make parenting orders, not custody orders, and those parenting orders have two components – parenting responsibilities and parenting time.

There are some basic parenting responsibilities – like feeding the children, making sure they get to bed, encouraging proper behaviour and preventing them from doing anything dangerous. Unless there is a reason for a judge to order otherwise, both parents have those responsibilities when the children are with them.

But, there are bigger responsibilities involved in raising children, such as getting the children to the doctor, dentist or other professionals, doing school projects and involvement in school activities and committees, getting the children to the church, synagogue or mosque and to any religious education, and getting the children to their practices, games and competitions and other activities, just to name a few. Taking on these responsibilities also involves making decisions about them.

While together, parents have to sort out how they will divide up these responsibilities. They have to do that after separation as well. So working out parenting after separation means listing all the parenting responsibilities and deciding which parent is going to take on each of them and if it is possible for the parents to share those responsibilities, which can mean a great deal of cooperation.

This is not an “all or none” exercise. It should involve looking at each responsibility, such as swimming lessons, soccer practices, dentist appointments and many more, and deciding which parent will be responsible for each one individually. It is possible for one parent to be responsible for hockey and the other to be responsible for gymnastics. It is also possible that parents may share responsibilities if they can work together, and both do things like work with the school on a child’s IEP. Who does what is based on what will work best for the child, and it often relates to who looked after that responsibility when the parents were together. But, it also can depend on which parent is available, which parent is interested in that responsibility, which parent knows something about that responsibility, which parent does it with the child, or other considerations particular to the family. Some responsibilities can be so very significant, perhaps too much for one person. So, it may be ideal for parents to share that responsibility with the other parent if they can cooperate, or it may be dependent on which parent can get help with the responsibilities from parents of other children, or others in the community.

It is always best for the children when their parents can share responsibilities, with both parents being involved in all aspects of their lives and one parent is able to jump in and take responsibility when the other parent has something come up. But, that really requires that the parents be able to get along and put the children first and not prioritize fighting out their gripes with their ex. Exposing children to parental conflict can actually cause physical damage to the children’s brains and can lead to long-lasting psychological and emotional problems. So, a parent who demands to take on responsibilities with another parent with whom they fight constantly will not get a lot of sympathy from a judge.

Fortunately, the new Family Law Legislation also provides incentives for parents to learn new ways to work out their issues in a cooperative manner through mediation, collaborative practice or other Alternative Dispute Resolution Options. But still, sharing a parenting responsibility with an ex does mean being able to get along with that ex and make decisions cooperatively and without one parent bullying, harassing, or attacking the other.