Custody And Access

A custody/access assessment is a detailed investigation of a family's situation by an educated and trained professional such as a social worker, psychologist or psychiatrist. The assessor will collect information relevant to the children's relationship with their parents and then recommend a parenting plan that suits the best interests of the children. The assessor conducting the assessment will meet with the parents and the children, and sometimes with other people who are involved in the children's life. The assessor will then write a report for the judge which contains recommendations on custody and access. In most cases, the parents are responsible for the cost of the assessment. In some cases, the judge may ask the Office of the Children's Lawyer, a government agency, to conduct an investigation and report back to the judge with recommendations. The Office of the Children's Lawyer may assign a social worker to conduct the investigation or assign a lawyer to meet with the children so that their wishes can be communicated to the judge.

It is common practice to use a personal journal or day-planner to record the history of access, especially in situations of conflict. But in the decision of Hartland v.Rahaman (Superior Court of Justice, Campbell, J., November 14, 2001), the court ruled that the use of the journal was not admissible as evidence.

In that case, the mother prepared a journal related to a child's behaviour around access visits with her father. The parties in this case were involved in an ongoing dispute regarding the father exercising his access rights. The child was exhibiting problematic behaviour around the time of her access days. The mother notified her family doctor of the situation. The doctor felt that the behaviour could be associated with the access visits and advised the mother to keep an ongoing journal of the child's behaviour.

The mother then brought an application before a judge regarding the father's access. At trial, the mother asked for permission to refer to her journal to help her refresh her memory of the incidents of negative behaviour exhibited by the child. The father applied to have this journal excluded from evidence on the ground that it was hearsay evidence. The court ruled that the journal was not admissible because the mother had no independent recollection of the events recorded in the journal. In addition, the court found that because the mother only recorded the negative behaviour of the child, the value of the evidence was tainted.

Nonetheless, it is recommended that separated parents maintain a written record of visitation in a personal journal or day-planner so that it may be referred to, in the event that there is a dispute as to the time, quantity and quality of access visits. The record should include as much detail as possible, such as the date, time and circumstances of each visit. The issue of admissibility of this evidence will be examined and addressed by your family lawyer.

On January 15, 2002, the Ontario Court of Appeal ruled that section 43 of the Criminal Code of Canada, which allows the use of "reasonable force" by parents and teachers in disciplining children, does not violate the Charter of Rights and Freedoms and will remain in effect. This decision resulted from an application that was brought before the court by the Canadian Foundation for Children, Youth and the Law to remove this section from the Criminal Code on the basis that it is unconstitutional and violates the Charter. Section 43 states:

In the decision of Canadian Foundation For Children, Youth and the Law v. Attorney General of Canada, (January 15, 2002), Ontario Court of Appeal, the appellate court ruled that the main purpose of this section is "to allow for the use of strictly limited corrective force on children by parents and teachers in carrying out their responsibilities to train and nurture the children." However, family court judges believe that positive discipline can be done without physical or emotional harm to a child, and generally do not accept physical discipline as an appropriate method of disciplining children.

The Supreme Court of Canada was asked this question in a case involving a caucasian Canadian mother and African-Canadian father in a dispute regarding custody of their four-year-old son (Van de Perre v. Edwards, 2001 S.C.C. 60.) Theodore Edwards, a former Vancouver Grizzlies basketball player, was seeking custody of his son. At the trial, the court granted custody to the mother. The father appealed this decision to the British Columbia Court of Appeal and argued that race was a relevant factor that should have been considered by the court when deciding custody. The appellate court conducted a full review of the evidence in determining the best interests of the child and, indeed, took into consideration the issue of race. The appellate court allowed the appeal and granted the father custody of the child. The mother then appealed this decision to the Supreme Court of Canada in Ottawa. The highest court addressed the issue of race by stating that "the question of which parent will best be able to contribute to a healthy racial socialization and overall healthy development of the child was a question of fact to be determined by the courts on a case-by-case basis." In the end, the Supreme Court of Canada decided that an appellate court should not intervene in a trial judge's decision and granted the mother custody.

Sometimes, parents separate because of domestic violence, substance abuse, or because there is significant antagonism between the parents. There are also instances where there has been a lengthy separation between the parent and child. Sometimes, one parent does not interact appropriately with a child, possibly causing emotional distress to the child. There may be a risk of abduction.

In these cases, the child’s health and safety must be protected during access visits. Supervised access centres offer such parents a method to address these issues while still allowing access visits to occur. These centres provide a safe and secure setting where access visits and exchanges (pickups and dropoffs) can take place under the supervision of trained staff and volunteers. Staff and volunteers have special skills and are trained to be aware of issues such as family violence, child development, physical, verbal and emotional abuse, mental health, and substance abuse problems. Staff and volunteers are sensitive to the needs of the child, particularly children who are involved in high-conflict custody and access disputes.

Supervised access centres provide a safe, neutral and child-focused setting for access visits between a child and the access parent. Supervised access centres ensure the safety of families, staff and volunteers by staggering dropoff and pickup times, by having staff greet the child at the front door and accompany the child during the visit, and by providing enclosed play areas. Some centres record and provide factual observations of the visits.

As an alternative to using a supervised access centre, the parents may both agree to allow a family member or friend to supervise the access visits or to facilitate exchanges.

A family court judge in New York has prohibited a mother from smoking in the presence of her 13-year-old son. But what makes this visitation order extraordinary is that he banned the mother from smoking, even though the child is neither allergic to cigarette smoke nor afflicted with a disease, such as asthma, that could be exacerbated by exposure to cigarette smoke.

Justice Robert F. Julian cited scientific evidence on the generally adverse health effects of second-hand smoke and found that continued exposure to environmental tobacco smoke is not in the best long-term interests of the child. Justice Julien said courts in New York and several other states have banned parental smoking when it was directly related to a current and ongoing malady suffered by an offspring. However, the judge said he was unable to find any decision ordering parents to maintain a smoke-free environment absent an underlying diagnosis of asthma, allergy or another disorder.

The 2001 case of Johnita M. D. v. David D. D., D-0-37432 arose when the child, Nicholas, complained of smoking during access visits with his mother. Nicholas lives with his father and grandparents, who do not smoke, and has overnight visitations with his mother. In August 2001, Nicholas sought an in-camera proceeding through his law guardian to consider the complaint that his mother smokes in the bathroom and in the car during all of his visitations, and that the apartment reeks of smoke. Even though the mother argued that the father was the real cause of this complaint to reduce and avoid visitation, Justice Julian decided that the motive for the complaint was not relevant since the behaviour at issue, smoking, is demonstrably dangerous to the child. The court stated that "even though Nicholas does not presently have asthma, exposure to environmental tobacco smoke apparently significantly increases his risks of developing, either as a child or as an adult, asthma, coronary artery disease, lung cancer, and certain chronic respiratory disorders, to name the most significant conditions."

Seems like a strange question. But like everything else in life, the Internet has even had an effect on custody and access rights to children.

For example, the right of a custodial parent to move to another province or country, and thus terminate the non-custodial parent's visitation rights, has been a very hot area of family law called "mobility rights".

In deciding mobility rights cases, courts have struggled with two competing interests. On one hand is the right of the custodial parent to move on with her life, move for a new job or marry a new spouse in another province or country. Should her decision to be the child's primary caregiver be used against her in planning her life? On the other hand is the non-custodial parent's right to maintain a close, loving and healthy relationship with the child—not to be prevented from remaining a critical part of the child's growth and development, and weekly schedule (including weekends, school events, sports, vacations, birthdays and religious holidays).

In mobility rights cases, the courts have expressed the desirability of maximizing contact between the child and both parents and have given consideration to the trauma a child would suffer as a consequence of being removed from the non-custodial parent.

Increasingly, custodial parents seeking to move have advocated the benefits of the Internet to persuade non-custodial parents, lawyers and judges that moving away would not cause as much disruption to the relationship between the child and the non-custodial parent.

The following mobility rights cases are two examples of how judges have incorporated the Internet and electronic communication into court rulings that permitted the child to move away from the non-custodial parent.

In the New York case of Lazarevic v. Fogelquist, 668 N.Y.S. (2d) 320 (Sup. Ct. 1997), the mother wanted to relocate with child to Saudi Arabia in order to reunite with her new husband and family who were living in Saudi Arabia because of an employment opportunity. The father sought to prevent this relocation. The court decided that it was in the best interests of the child to move to Saudi Arabia with the mother, stepfather and half brothers and sisters, but required the mother to comply with specific conditions to ensure that the child's relationship with his father be disrupted as little as possible. The court ordered the mother to hire, at her expense, a computer consultant in New York and Saudi Arabia to set up a system through which the father and son could communicate through the Internet and by fax. The computer would be for the child's personal use only and there would also be a telephone line dedicated to communication with his father.

In the case of Sumra v. Sumra, 561 N.W. (2d) 290 (N.D. 1997), the mother sought to relocate with the children to Wales in order to be closer to her family and to pursue employment. The court allowed the move, but required the mother to ensure that the children have unlimited communication with the father by telephone, audiotape, videotape, electronic mail and regular mail.

In a March 2000 custody trial, the mother of 9-year-old triplets had lost custody of her children to the father. The custody trial was adjourned to decide whether the mother would continue to have access visits with her two boys and girl. Fearing that the family court judge would cancel the access to her children, the mother cashed in her assets and prepared to flee with the children on her next access visit. She hid the children in her car and drove to the United States and then to Mexico, where they lived for a few months until they were found and returned to their father in Ontario.

The mother was criminally charged with three counts of abduction. At her criminal trial, she argued that her children would face imminent psychological and emotional harm by living with their father. The mother relied on section 285 of the Criminal Code that provides that a person cannot be found guilty of abduction if the court is satisfied that taking the children was necessary to protect them from danger of imminent harm.

A judge and jury acquitted her of all criminal charges. However, the Crown Attorney appealed this decision and, on August 26, 2003, the Ontario Court of Appeal determined that there was neither harm nor imminence in the mother's situation.

The appellate court was concerned that anarchy and chaos would be created in family law if a criminal court judge were to accept that a family court judge's decision to grant custody to one parent created a situation of imminent harm to the children. The appellate court stated that parents who are unhappy with the outcome of custody proceedings would feel entitled to ignore unfavourable court orders regarding their children.

This was the dilemma that plagued six-year-old Nathan. His parents became embroiled in a nine-day trial and then a two-day appeal over this very problem.

Ultimately, on May 21, 2002, in the case of Cox v. Down, [2002] O.J. No. 2762, Mr. Justice Templeton of the Ontario Superior Court of Justice decided that the least of all evils was to decide each and every aspect of Nathan's life for his two parents.

Nathan's mother was a nurse and his father was a doctor. These parents had never lived together, Nathan had lived with his mother since birth. When he was 5 years old, Nathan's father was awarded custody. His mother appealed the judgment changing custody of Nathan. The trial judge found that the mother actively interfered with the father's access and discouraged a relationship between Nathan and his father. After a long history of litigation, it was ordered that granting custody of Nathan to his father and access visitation to his mother would be in Nathan's best interest.

On appeal, an order was made for joint custody of Nathan using the "parallel parenting" model. The appeal court considered the many Canadian cases that concluded that parallel parenting can be appropriate in cases where parents are openly hostile and uncooperative. The concept is that the parents have equal status, but exercise the rights and responsibilities associated with custody independent of one another. A parallel parenting order is much more than a mere residential schedule where the child resides with one parent on a day-to-day basis. The concept of parallel parenting is intended to remove the power struggle between the two parents for control over the child.

The court decided that a parallel parenting order that would micromanage Nathan's life with his two parents was in his best interest.

In the end, not only were Nathan's parents granted equal time with Nathan throughout the school year, summer and holidays, but the rest of Nathan's life was to be micromanaged. Nathan's father was granted care and control of Nathan's birth certificate and passport. Nathan's mother was responsible for all decisions regarding his health. Each parent was entitled to select one after school activity for Nathan, provided that the activity did not fall within the time Nathan spent with the other parent. The parents were ordered to use a "communication diary" to exchange information regarding Nathan's care.

In addition, the appellate judge was forced to decide the title of Nathan's father. The court ruled that the mother was required to refer to the father as "Dad" or "Daddy" in the presence of, and within hearing distance, of Nathan.

On December 17, 2004, in the Ontario case of Warnica v. Gering, Mr. Justice Timms dismissed Christopher Warnica’s claim for shared joint custody of a pet dog named Tuxedo. In that case, the judge stated that courts should not be in the business of making custody orders for pets. Although the judge acknowledged that pets are of great importance to human beings, Mr. Justice Timms stated that some people go to extraordinary lengths to preserve that relationship. That is why Mr. Justice Timms ultimately ended Mr. Warnica’s case.

As for pet support, in the Alberta case of Boschee v. Duncan, [2004] A.J. 677, in addition to seeking $1,500 per month in spousal support, the wife claimed $200 per month to support her husband’s St. Bernard dog. The wife argued that she required pet support to cover the veterinary costs and the costs of feeding and caring for the dog after her husband left the dog in her care. The court found that a St. Bernard dog costs more to maintain and feed than the usual smaller variety. The judge hearing this case ruled that $200 per month was a reasonable sum to compensate the wife for the time and expense required to look after her husband’s dog and ordered him to pay pet support.

Previously, in the March 2, 2001 decision of Chapman v. Chapman, the Ontario Court of Appeal considered whether access by a grandparent to grandchildren who live with their parents should be imposed over the wishes of those parents.

In that case, the court decided that the grandmother’s conflict with her children was unfortunate, but there was no evidence that the parents’ refusal to permit the grandmother access to her grandchildren was detrimental to them. Thus, the court ruled that the decision of parents to refuse a grandparent access should therefore be respected by the court and the children's best interests should be left in the exclusive domain of their parents.

This ruling may have been loosened by the June 4, 2004 decision of Justice Sproat in the case of Dobre v. Dobre.

In that case, the grandparents on the father's side applied to the court for access to their grandchildren, five-year-old Alexandra and three-year-old Antonio.

The children's father did not participate in the court case because he was attending a treatment program for his drug addiction. The children's mother opposed the application.

The court decided that it would be in the children's best interests to have a relationship with their paternal grandparents and the rest of the father's family. The court granted the grandparents supervised access at an access centre for three hours per week and invited them to have unsupervised access after a reintroduction period.

Children’s Aid Society of Toronto CAS had been involved with this family since the birth of the children. CAS’s concerns related to the cleanliness of the home and the ability of the parents to meet the special needs of one of the children.

Previously, CAS had apprehended the children and later returned them to their parents. But in November 2002, the children were once again apprehended because of the conditions in the home. CAS then sought an order of "Crown wardship with no access" between the children and their parents in order to allow the children to be adopted. CAS was of the view that an order of Crown wardship with no access would ensure the children’s future opportunity for a permanent and stable home.

After a seven day trial in 2003, the trial judge found that Crown wardship was in the children’s best interests but did not make a "no access order." Instead, it made a "silent with respect to access" order allowing the CAS to facilitate access between the parents and the children until such time as adoptive parents were found. As a result of this restrictive access order, the mother appealed this decision to the Ontario Court of Appeal.

On September 27, 2005, the highest court in the province ruled that neither parent shall have a right of access to either child in order to allow the children to be adopted.

In doing so, the court was aware that the legislation still permitted the mother to seek an access order if the children had not been placed with adoptive parents within six months. Moreover, an order giving no right of access to the parents did not prevent the CAS from permitting the parents to visit the children.

In the Criminal court case of R. v. Gettliffe-Grant released on January 11, 2007, British Columbia Supreme Court Justice Koenigsberg considered one of Canada’s worse cases of parental alienation.

The court considered the case of Nathalie Gettliffe and her husband Grant. They were married in 1989 and had two children together. Their son was born in 1993 and their daughter was born in 1995. They settled in Vancouver because Gettliffe was working on her graduate degree at the University of British Columbia.

Despite Gettliffe’s objections, Grant became increasingly active in his church. This came to be a source of stress on the marriage. Finally in July 2000, when the children were 7 and 5 years old, the couple separated. The couple then met with a counsellor and entered into an agreement providing for joint custody of the children.

In 2001, Gettliffe applied to the Family court to allow her to take the children with her to France for a 10 month academic term. Her request was denied by the court.

Surprisingly, two days after the judgment was rendered, Gettliffe left for France with the children. She did not contact Grant until several days after her arrival in France. In a subsequent heated telephone exchange, Gettliffe threatened that if Grant did not agree to her staying in France for 10 months with the children, then he would never see the children again.

Over the next few years, beginning in 2001, many court proceedings were undertaken in France through the Hague Convention to enforce the Canadian court’s orders. At least three separate French court hearings resulted in decisions ordering the return of the children to Canada.

In the meantime, Gettliffe had entered into a new relationship with another man and had a child with him.

During the ongoing court proceedings, Gettliffe only permitted Grant three or four visits with the children for a few hours at a time.

In France, this case had become publicized. Gettliffe painted Grant as a cult-crazed, violent, abusive father. She described herself to the media as a brave mother who had the courage to flee Canada to save herself and her children. Gettliffe had taken up residence in a small village in France and obtained thousands of signatures on a petition to be sent to the courts and government officials asking them for protection of the children from their father.

In April 2006, Gettliffe returned to Vancouver on her own to defend her post-graduate thesis. When she did return to Canada, she was arrested. She was pregnant with another child at the time. Before leaving France, she moved her children to an undisclosed location so that they could not be found and returned to British Columbia. Even after her arrest, Gettliffe refused to provide any cooperation to authorities or Grant for the return of the children to Canada.

By now, the children were 13 and 11 years old.

When asked for their views regarding their father, they stated that they no longer wished to see him.

The prolonged stay of the children in France for over five years caused them to lose their ability to communicate in English - their only means of communication with their father.

At Gettliffe’s criminal trial, the Crown Attorney argued that Gettliffe’s alienation of the children from their father was deliberate and prolonged, to ensure that they would never have to leave France and be in their father’s custody again.

The children were eventually brought back to Canada in July 2006 – only after the intervention of the French police who assisted Grant in locating the children.

In the end, Gettliffe was sentenced to prison for 16 months for two counts of child abduction contrary to section 282 of the Criminal Code.

In describing his outrage, Justice Koenigsberg stated that “the evil of abducting children for the purpose of depriving an available and appropriate parent of a relationship with their children is denial of the child’s right to the best possible relationship with both parents. It is a tenet of Family law recognized, in my view, in the Criminal Code sections which criminalize the conduct which deprives a custodial or access parent of care and responsibility for children that it is children’s rights that are at stake in custody and access issues. For most children, fundamental to their sense of identity is an ability to love and accept love from each available parent. Thus, the most profoundly aggravating factor in this case is the compelling evidence of persistent and deliberate alienation of these children from their father…. But perhaps the most egregious of all is the responsibility for hostility toward their father, by words and deeds, which must lie at the feet of their mother who took them from their home with the intent of depriving their father of his custodial rights. And, she then, placed them in an environment in France where the mother’s family, friends, and ultimately apparently an entire village, as well as the wider French public, came to believe untruths about the father's conduct toward the children and the role of his religion in his and their lives.”

It may seem like the options are few, unfair and expensive. They are. Every day, spouses separate. Most of the time, the spouses’ separation is anticipated and foreseen. In these cases, the spouses will often make temporary arrangements for the children and finances, until more formal arrangements can be made with the benefit of legal advice.

However, it is in the rare case that one spouse returns home from work to discover that the other spouse has moved out with the children. It is in these cases that the spouse must act fast.

According to Ontario’s Children's Law Reform Act, each parent is equally entitled to custody of the children, but that right is prejudiced where that spouse has agreed to the new custodial regime. Section 20(4) states:

“Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides.”

Thus, it is critical that the spouse who has just discovered the removal of the children from their home move quickly to seek a court order.

However, this is not so simple. It is time-consuming, expensive and its result is not guaranteed. The spouse must first retain counsel, then commence an Application in court and then bring a motion before a judge asking that the case be considered an emergency (because if it is not, then the judge cannot deal with the case until months later). All this work occurs while the children are residing with the spouse who left the home and, in some cases, while the estranged spouse is having no contact or communication with the children.

This recently occurred in the case of Tulchinsky v. Shuster (2009) O.J. No. 405, where Mr. Justice Powers decided that the mother’s removal of the daughter from her home and her father’s life was unreasonable and unjustified. In fact, he characterized the mother’s conduct as “premeditated” and an “abduction”. The mother even objected to the case being classified as an emergency - to delay the proceedings and possibly establish a status quo in her favour. She also argued that the father was abusive, although Justice Powers did not accept this and stated that, even if it were true, the mother could not unilaterally remove their daughter from her father’s life, where he was actively involved in her care and upbringing.

In this case, the judge reinstated the status quo that existed prior to the spouses’ separation. He was then asked for a ruling on costs.

Justice Powers concluded that the mother acted in “bad faith” which then entitled the father to an award of costs that would reimburse him for the work involved in seeking a court remedy to this problem.

The mother was ordered to pay the father costs of $25,000.

There are at least 2 times when this question arises – at birth and after separation.

For naming a child at birth, Ontario’s Vital Statistics Act states at section 9 that “[t]he mother and father, or either of them…shall certify the birth in Ontario…” This legislation requires, at section 10, that “[a] child…shall be given at least one forename…and a surname.”

It is the next part of the Vital Statistics Act that addresses those cases where the child’s parents do not agree on the child’s name. Section 10(3)(2)(ii) states:

“If both parents certify the child’s birth but do not agree on the child’s surname, the child shall be given…a surname consisting of both parents’ surnames hyphenated or combined in alphabetical order, if they have different surnames.”

Thus, where the parents cannot agree on a child’s last name, Ontario’s Vital Statistics Act stipulates that the child will be given a last name made up of both parents’ last names, in alphabetical order, either hyphenated or combined.

As for changing a child’s name after birth, such as after separation, section 14(1)(a) provides that a “person with lawful custody of a child under the age of 12 years whose birth was registered in Ontario may elect…to change the child’s [name]…unless a court order or separation agreement prohibits the change.”

This is followed by section 14(3) that provides that a “person who elects under subsection (1) shall give notice of the election to every person who is lawfully entitled to access to the child.”

That means that if only one parent has lawful custody of a child under the age of 12 years, he or she may apply to change a child’s name, unless a court order or separation agreement prohibits such a change. That is, provided that the parents do not have joint or shared custody of the child, the parent with sole custody does not require the other parent’s consent to change the child’s name – just notice to him or her. Such notice could lead to a court application to prevent such a change.

Ontario’s Vital Statistics Act operates alongside Ontario’s Change of Name Act.

Section 5 of the Change of Name Act states that:

“A person with lawful custody of,

(a) a child whose birth was registered in Ontario and who is ordinarily resident there; or
(b) a child who has been ordinarily resident in Ontario for at least one year immediately before the application is made, may apply to the Registrar General in accordance with section 6 to change the child’s forename or surname or both, unless a court order or separation agreement prohibits the change.”

Section 5(2) of the Change of Name Act states:

“The application under subsection (1) requires the written consent of,

(a) any other person with lawful custody of the child;
(b) any person whose consent is necessary in accordance with a court order or separation agreement; and
(c) the child, if the child is twelve years of age or older.”

Section 6(7) of the Change of Name Act states that:

“If anyone is entitled to notice of an application, the applicant shall,

(a) at least 30 days before filing the application, send notice and a copy of the application by registered or certified mail to the last known address of the person entitled to notice; or
(b) obtain an acknowledgment of notice, signed by the person entitled to notice, and provide it with the application to the Registrar General.”

In summary, there are laws pertaining to the giving or changing of a child’s name. A parent seeking to change a child’s name without the other parent’s agreement, or a parent seeking to prevent a name change, is best advised to consult a lawyer.