Brampton Parenting, Custody, Support, and Access
Custody is the right to make important decisions for the well-being of a child. More specifically decisions with respect to the Health, Religion and Education. Custody is not the same as residence.
Custody is the right to make important decisions for the well-being of a child.
More specifically decisions with respect to the Health, Religion and Education. Custody is not the same as residence.
A child has the right to have a relationship with both parents. Both parents have an equal right to custody. As long as there is no court order or agreement to the contrary, parental rights and responsibilities are to be exercised jointly. Neither parent may deny the other parent the right to see the child.
In circumstances when a parent has no contact with the other parent, is unaware of the other parents whereabouts or is unsure of the paternity a custody order may still be required to register a child in school or to obtain a passport. Custody is usually given to the person asking for it, if there is no dispute.
In many cases parents are able to discuss and make arrangements about their children’s care without outside help. There are times though when parents fail to resolve their issues and we have to ask the court to adjudicate. If both parents want custody of the child, the Court will make a custody order according to what it feels is in the best interests of the child.
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In The Best Interest of the Child
The “best interest of the child.” is a legal principle that has developed over the years through legislation and case law. To decide what is best for a child, the court will consider:
The age of the child,
The health of the child,
The emotional ties between the parents and the child,
The Stability of the child
The child’s views and preferences
The ability of the parents to care for the child,
Any history of family violence or substance abuse, and
The child’s ties to the school, home, and his or her community
The cultural, linguistic, religious and spiritual upbringing and heritage
The Different Types of Custody
This is the most common type of custody. An order for joint custody is made when both parents are capable and can discuss matters concerning the children in a reasonable way. The child may live primarily with one parent and the other parent will have generous access to the child.
The parent who has physical control of the child at any one time generally makes decisions regarding day-to-day care. Both parents have an equal input on major decisions.
When a parent has sole custody it means they have the right to make the major decisions for the child without seeking any input form the other parent. An Order for sole custody is rare. Sole custody does not automatically give the sole custodial parent the right to travel with the child or relocate. Sole custody does not imply that the other parent does not have the right to exercise access.
Each parent has physical custody of the child for roughly equal amounts of time. Shared and Joint custody are not the same. Shared custody deals with a situation where the children are physically living. Joint custody indicates that the parents make major decisions about the children together. Shared custody impacts the guideline child support payable.
Split custody is when parents have two or more children together, and each parent has physical custody of one or more of those children for 60% of the time.
The child has the right to have a relationship with both parents.
A parent who does not have primary residence/ custody of the child has the right to spend time with the child. The term access means visiting rights. Access is the right of the child and not the right of the parent. It is rare to see access to the child denied completely. Access rights permit both the child and the parent to maintain a relationship despite the break-up of the adult relationship.
An access parent has the right:
To make inquiries and to be given information as to health, education and welfare of the child,;
To oppose the adoption of the child by a third party and to be given notice of an adoption hearing;
To receive notice of and to be heard in any criminal proceedings against the child;
To consent to or to oppose a change in the child’s given name or surname under the Change of Name Act;
The Different Types of Access
Parents may decide an access schedule between themselves. Themselves when access should be granted. If they are unable to agree, they may approach the Courts to receive a specified access order.
Where certain conditions must exist before access is allowed. For example drug testing.
The parent wanting access may only visit in the presence of another adult approved by the parent with custody or the Court.
The court will outline the exact days and times when the parent may visit.
If the court feels that the parent without custody may harm the child, he or she will be denied access completely. This rarely occurs.
Children have a legal right to receive financial support from their parents.
Every parent has a legal duty to support their dependent children to the extent that they can. More than one parent may have a legal obligation to pay child support for the same child. Biological parents, adoptive parents, step-parents, or other people standing in the place of a parent have the potential to be considered parents, and be obligated to pay child support for a dependent child.
A dependent child is any child under the age of 18 unless:
the child has married, or
the child is at least 16 years old and has “voluntarily withdrawn from parental control”.
A child who is 18 or older may also be considered dependent if they cannot support themselves because:
they have a disability or illness, or
they are going to school full-time.
Child support is calculated based on amounts set out in the Federal Child Support Guidelines (provide link). The amount of child support payable is calculated by looking up the payor parent’s income in the child support tables. The Table shows the monthly child support payable, based on the “gross income” of the payor parent and the number of children. Gross income means before taxes. It is usually the amount on line 150 of the parent’s income tax return. The table is used as the starting point.
Sometimes the Line 150 income is not an accurate indication of the payor parents income. A different income may have to be imputed based on lifestyle, standard of living, past work history, education, past income etc. Often this issue is highly contested.
If one parent does not pay child support, the other parent cannot deny contact with the child. Also, if one parent denies the other parent contact with the child, the other parent cannot stop making support payments.
On top of the guideline amount, the payor may also have to pay a portion of the special expenses. Special expenses could include:
a. Child care;
b. Medical and dental premiums;
c. Health related expenses that exceed $100 annually;
d. Extraordinary school expenses;
e. Post-secondary education;
f. Extra-curricular activities.
The costs of these special expenses are paid in proportion to the to the parent’s income.
Spousal Support is a term that refers to the money that is paid by a spouse/ partner towards financially supporting his or her former spouse/ partner. Spousal support is also referred to as alimony or maintenance. You do not have to be married to receive spousal support.
There is no automatic right to receive spousal support. The question of whether a party is entitled to receive spousal support is complex and highly circumstantial, and you should seek legal advice if you think you will have to pay spousal support, or if you are unsure whether you are entitled to spousal support.
Some of the factors that are considered when spousal support is an issue:
The condition, means, needs and other circumstances of each spouse
The length of time they lived together
The spouse’s contributions to the relationship
The financial costs of caring for a child
Ability to contribute to his or her own support
Economic advantage or disadvantage to a spouse caused by the relationship or the relationship breakdown.
Age of the parties
Duration of the relationship
You may have heard of the spousal support advisory guidelines (SSAG). The guidelines have been used since 2008 to decide how much spousal support is payable and for how long. they are a reference tool for lawyers and parties but are not legislated. The Guidelines take many things into account and are quite complicated. The free online software MySupportCalcualtor.ca (Link) is a simplified version of the software that lawyers use. Once you input all the information the Guidelines will give low, middle, and high ranges of support amounts to consider.