Q & A: How will parenting arrangements change in Canada on March 1, 2021? And will it make a difference?
By John T. Syrtash, Associate, Garfin Zeidenberg LLP, a Toronto family law lawyer for the past 38 years.
Question: What is the real difference between Sole Custody, Primary Caregiver, Joint Custody, and Shared Custody in Ontario? How are parenting arrangements going to change for married parents as of March 1, 2020?
Answers:
Sole Custody
If you have sole Custody and the child lives with you, then only you can make important decisions about the child, such as health, education, religion, and general welfare. The sole exception to this rule is that the access parent obviously has the sole right to make emergency decisions when the child is in his or her care during access visits.
Shared Custody
If you share Custody, then the child lives equally with both of you. Decisions over these issues are also equal. Usually, only parents who have learned to agree are granted such rights by Court Order or will voluntarily sign a Parenting Agreement.
Primary or Residential Care and Control with access or time with the child reserved for the other parent
If the child lives with you “primarily” or you have “residential care and control,” then you can make decisions over minor decisions, such as a haircut style. Still, the other parent can also make such decisions during access visits. This type of Order or agreement means that even though the child lives with you primarily, you are still not permitted the unilateral right to choose the child’s physician, school, or religious practice. In essence, you need to get the other parent’s written agreement or consent. Disagreeing couples that have this arrangement are the stuff of costly litigation and several court appearances. If the mother chooses A and the father disagrees B, then either they or Legal Aid will spend a lot of money fighting over such endless disputes in Court. The law doesn’t normally recommend this type of arrangement for those who can’t set aside their hatred for a child’s benefit. And when the Courts do allow it and the disputes continue then, the Court will often choose that that only one parent has the sole right to make major decisions, i.e., sole custody. Henceforth, only one of the parents makes the final decision over any major issue to avoid a conflict that in-itself can greatly damage the child’s emotional health.
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Joint Custody
Joint Custody can mean different things. It can mean shared Custody (see above.) But joint Custody can also mean that you have “primary or residential care and control.” If you do but have joint Custody, then you do not have the unilateral right to make decisions about a child’s health, education, religion, or welfare. You must share all the major decisions equally with the other parent. So the term is a misnomer for those parents who have such an arrangement. Living with the child may still mean interminable disagreements and the requirement for written consent every time you want to choose a physician or a school. You must resolve each major decision as it comes along with the other parent even if the other parent only sees the child online and once every other weekend or some other schedule.
Parallel Parenting
In parallel parenting, a child may or may not live with the parents equally. What distinguishes this type of arrangement is that each parent has the responsibility for different types of major decisions. So, the mother may have the sole right to make medical decisions, such as the right to choose the child’s physician, and the father may have the sole right to choose the child’s school, including a private or religious school. With this arrangement, each parent has the sole power to decide a certain major issue without the other parent’s agreement.
Once again, the courts frown upon ordering such sharing unless the parents are agreeable and know how to compromise. The parents should also ensure that the distance between the two homes is not unreasonable if parallel parenting is combined with shared Custody, i.e., where the children spend equal time with each parent. However, parallel parenting can also be ordered or agreed upon where the child lives primarily with one parent while the other exercises access.
Parenting after separation effective July 1, 2020
The above terminology for parenting arrangements and their definitions will continue for unmarried parents who are separating or have separated under because provincial legislation covers such persons. Currently, the Ontario government is seeking submissions on that issue. It may ultimately adopt the same changes that are about to come into force on July 1, 2020, in the revised federal Divorce Act for married couples (see below.)
For married couples, the current Divorce Act continues to use the terms “custody” and access. until July 1, 2020. The term Custody is mostly about how spouses make decisions about their children. Someone with “sole custody” has the right to make these decisions without consulting the other spouse until July 1, 2020. Similarly, “shared custody” is about having the children’s time shared equally as well as all decisions regarding the child’s schooling, religion, health, and general welfare. Such parents have the equal right to make these decisions and must agree upon each one. Access continues to be defined by how the children’s time is scheduled between the spouses’ homes. It usually refers to the children’s time with the spouse who has the least amount of it.
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Changes on July 1, 2020
On July 1, 2020, for married couples who are separated, Canada’s Divorce Act will make all this terminology completely obsolete, in my professional view the changes do nothing to affect the lives of warring and very difficult parents. Proponents of the changes to the Divorce Act argue that terms like Custody and Access, and their different variations, are a major reason for family court battles. They point out that parents fight over the term “custody’ and ‘access’ as a means of control and not a child’s best interests. By shifting to terms like “decision-making responsibility, parenting time and contact,” the Liberal federal government hopes that divorcing parents will become more responsible and spend less time in battle. It is well known that a reduction of conflict benefits the child enormously.
For this reason, the new Divorce Act will mandate that lawyers recommend some form of out-of-court process for their clients to resolve parenting disputes called a Family Dispute Resolution Process before commencing any Court application. The Court would then only be involved if this alternative way of resolving disputes didn’t succeed. The following is a summary of the new terminology:
Decision-making responsibility means a spouse’s duty to make important decisions about their child’s life, including about the child’s health, education, culture, language, and extracurricular activities. Under section 16.3 of the new Divorce Act, decision-making responsibilities can be shared (formerly called Joint Custody) between spouses or allocated to just one spouse (previously called Parallel Parenting, see above.)
Parenting time means the time a child is in the care of each spouse. Each spouse has the sole authority to make day-to-day decisions affecting their child during their parenting time. Contact (formerly known as “third party Access’), on the other hand, means the time a non-parent has with a child, including grandparents and other important adults in the child’s life. People with contact do not have the right to make day-to-day decisions affecting the child.
Spouses can make parenting plans describing their agreement about how they will share decision-making responsibilities and parenting time and about which another person can have Contact with their child, such as a grandparent. The Court will usually make parenting orders on these subjects if spouses cannot succeed during mediation in a Family Dispute Resolution Process. A dispute resolution process will attempt to resolve a family law dispute and could involve negotiation, mediation, collaborative law, and arbitration. Under the new law, such a process is not a prerequisite to bring a Court application for a parenting Order in the event of a dispute. But the Courts will have the discretion to Order such a process when a Judge is asked to make a decision about any such Order. This means that a warring parent would be well advised to engage in negotiations, collaborative law, mediation, or arbitration before bringing such a Court application. Otherwise, he or she takes the risk of spending a few thousand dollars to prepare for and attend in Court without any resolution since the Court is being legislatively encouraged to have the parties attempt dispute resolution first. Trying to attend before a Judge initially may become a complete waste of money. Such attendances may only be warranted in the exceptional situation of an emergency such as child abduction and/or the denial of access.
My Perspective
The sad part is that the Federal Government honestly believes that differing spouses with parenting disputes will suddenly become better parents on July 1, 2020. By waving the Parliamentary Wand, such parents will then miraculously be obliged to share to mediate or arbitrate if they can’t agree. This is a fantasy. The new Act opens the door to the argument that only a rare case would justify the allocation of decision-making responsibility to just one spouse. This attempt is grievously misguided. The reality of parenting disputes and the way they are actually resolved in Canada is not Utopia. Snapping one’s fingers with some new language or encouraging mediation or negotiations doesn’t make it so.
First, experienced family law lawyers in Canada already recommend alternative dispute resolution methods when warranted, but only if a client can afford it and there is room for compromise. More importantly, many people won’t do so because they can’t afford it. There are no savings involved. The Courts are free and, except for the Court’s underfunded mediation services, mediators charge for their fees, even if they are usually shared. The Government forgot or did not know that parents who pay support or need support cannot always afford to pay for a dispute resolution process, especially if they are expected to pay their lawyers simultaneously. Does it cut out the lawyers? No. Paying a lawyer is mandatory for any agreement to be considered valid since a parent will require a Certificate of Independent Legal Advice. And the legislation doesn’t help such parents because the administration of justice is Provincial, not Federal. No extra money has been allocated for such a dispute resolution process during the budget tightening of the Ford government.
Ontario’s Family Court Mediation Services
We currently have a Provincial Mediation process, and I encourage estranged parents to use it: https://www.attorneygeneral.jus.gov.on.ca/english/family/mediation.php.
Mediation is available on-site in the court facility and off-site in the mediators’ offices. Modest user fees for off-site mediation are charged to clients on a sliding scale based on their income and number of dependents. View the Off-Site Family Mediation User Fee Schedule.
However, such mediation is not confidential if conducted by the Family Court Mediator. It also will not take place if either parent has suffered violence in the home or is intimidated. If the mediation fails, then the parent is back in Court fighting anyway for sole decision-making rights. If financial issues are to be resolved, such as support or property division, then the mediator may ask a parent to supply a valuation of assets and income and documents such as payslips, credit card statements, and Notices of Assessment.
Publicly paid or funded Family Mediation Services simply don’t have the investigative resources to verify a parent’s financial disclosure. It also won’t pay for an independent private Assessment of parenting abilities of the parents even if the Office of the Children’s Lawyer won’t accept the work involved. The client then has to rely on his lawyer and experts, i.e., expensive valuators and assessors, that he must pay himself.
Private Mediators
If the parents want confidentiality and more of a mediator’s time than the Family Court Mediation Services are obliged to provide, then they have the option to contract with a private mediator. However, the costs are often prohibitive, especially if the same Mediator is asked to arbitrate any unresolved dispute (see below.).
When a Dispute Resolution Process Fails: Mediation/Arbitration
If the parents still can’t resolve matters then in a certain type of mediation, called mediation/arbitration, the mediator/arbitrator will replace the Court by imposing his/her own decision through “arbitration.” Arbitration involves a full-blown trial with witnesses, Court reporters, and the costly time of your lawyer. The cost of a motion or trial before an Arbitrator is usually too expensive for most people to resolve demanding parenting disputes because, in addition to your lawyer, you are also sharing the cost of engaging this Arbitrator. Most differing clients cannot and will not pay, even if the mediator/arbitrator’s fees are shared. Differing and difficult clients will simply not choose this option if they have modest means. They will inevitably choose the Court, and the new language is not helpful if they can’t agree on how to allocate major decisions.
Secondly, collaborative law is often not useful. In collaborative law, both parents have to sign an agreement that their collaborative lawyers will never resort to a Court application if the parties can’t agree. Ontario lawyers generally avoid this process for a simple reason. In any negotiation, the implicit threat of expensive Court action is critical to prevent the very battle that it threatens. If it doesn’t settle, the parents can choose to have Judge resolve the dispute or sign an arbitration agreement, Those who can’t afford it would naturally select the Court rather than an expensive arbitrator. The client who can afford to do so will usually choose arbitration because it is confidential and faster. But few have the means to arbitrate.
Conclusion
The provisions of the new changes to the new Divorce Act are noble. They seek to have parents avoid lengthy and expensive Court fights through negotiation, mediation, and sometimes arbitration. However, for difficult or victimized clients that can never agree to very much, the changes are meaningless and fail to help warring parents. Such people ignore the emotional harm to a child that these conflicts create. Instead, such difficult persons would rather inflict retribution on their’ partners for a failed relationship. It is more important to have the other suffer as payback. Accordingly, I predict that none of these changes will succeed when one or both parents never agree on what is best for their children. In serious conflicts, all the changes do is to add yet another layer of costs and time wasted.
John Syrtash is an associate and family law lawyer with the Toronto firm of GARFIN ZEIDENBERG LLP.
John T. Syrtash B.A. (Hon.) LL. background:
Invited Speaker on Bill 78, Proposed Changes to Canada’s Divorce Act, House of Commons Standing Committee on Justice and Human Rights (November 26, 2018)
Editor of the Syrtash Family Law Newsletter, Lexis Nexis
President of the Syrtash Spousal Support Database
Author of Religion and Culture in Canadian Family Law, Butterworths
Author A Calendar of Northern Fables, Amazon
Neither GARFIN ZEIDENBERG LLP nor John Syrtash is liable for any consequences arising from anyone’s reliance on this material, presented as general information and not as a legal opinion.
John T. Syrtash,
Associate
GARFIN ZEIDENBERG LLP
Yonge-Norton Centre
5255 Yonge Street, Suite 800
Toronto, Ontario, Canada M2N 6P4
Cell: (416) 886-0359
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email: [email protected]
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