Written by: Kevin Heinrichs (View All Posts
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) Published: March 10, 2014
Categorized: Custody and Access.
There seems to be a misconception that family lawyers should be hired only by separating partners. The idea is an old one, based on the history of adversarial divorce and family law, certainly in Toronto in particular, but also in Canada in general. That adversarial model still exists, which is why the idea of lawyers fighting for rights is not exactly wrong – it’s just a bit limited.
The sub-field of child custody serves as a good example. Everyone has heard the stories: parents who are no longer together, who cannot agree on what is best for their children, going to court to have a judge decide. Litigation can be complex and grindingly arduous. Lawyers should serve as guides, as advisors and as representatives for parties during this process. Their concern is to help you relate what you believe is best for your children to the court so that judges can make proper and informed decisions. They can help you figure out what you want the court to do, assist you in drafting the documents that need filing, and speak to the court on your behalf.
Luckily, those parents are no longer limited to an adversarial model. More and more, people are realizing that litigation is not the first and best way to deal with child custody issues. In fact, it may best be left as the last resort in the majority of situations. Lawyers who are trained to deal with child custody issues should not only know how to use the court system, they should be able to identify many options and help the children’s parents to choose the path that is right for their families in their circumstances. This can include mediation, arbitration, lawyer/client settlement conferences and simple negotiation between counsel.
Parents are not the only people who might benefit from the advice of lawyers when questions of child custody arise:
Grandparents: There are many circumstances in which children’s grandparents need to assert or to clarify their role in those children’s lives. This can range from the determination of full custody to decisions about how much time or access will be spent with a child. Section 21(1) of the Ontario Children’s Law Reform Act (CLRA) provides that “A parent o f a child or any other person 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. A lawyer who is conversant with child custody can lead a grandparent through the process and help bring the matter to resolution.
Step-Parents: Though third parties may apply for custody rights in relation to a child, and though that would certainly include the determination of custody and access with a step-parent, the CLRA also provides that anyone who adopts a child is considered a parent to that child (section 1(2)) and that the relationship which a child has with an adopted parent will be taken into account in determining that child’s best interests (section 24(2)(h)) A lawyer can help a step-parent to determine whether adoption of a step-child is a viable option.
Third parties: Situations can arise in which third parties, for example teachers, counselors, medical professionals, or recreational program providers, may require advise on how to deal with the competing instructions or demands of separated parents. A lawyer can untangle this confusion and provide clarity which can then be set into organizational guidelines.
Children: All lawyers dealing with issues of custody and access put the best interests of the in the forefront. Sometimes, however, it is necessary for the child him or herself to be represented by a lawyer. In such a case, it is possible for a Judge in Ontario to make an order under s.89(3.1) of the Courts of Justice Act that a lawyer from the Office of the Children’s Lawyer be appointed.
Parents of abducted children: It is unfortunately not unheard of that children will be abducted by parents or third parties and taken to jurisdictions outside of Ontario. These cases can be extraordinarily serious and complex and may well require the assistance of the police through application of the Criminal Code and the Federal government by way of the Family Order and Agreements Enforcement Assistance Act. In such cases, lawyers can be invaluable in navigating the various regulations and resources and helping to secure the return of the children through resources including the Hague Convention on the Abduction of Children and the CLRA.
Lawyers can provide clarity and peace of mind when difficult and emotionally charged issues of child custody arise. If there are any questions that you have regarding the issues set out above, or any other child related questions, please contact a lawyer to assist you.
