Urgent or Non-Urgent
Family lawyers will ask in a first consultation whether a client has parenting concerns because parenting disputes often take priority. Parenting disputes are not always a 5-alarm fire type situation, but sometimes they are and action must be taken immediately. In some cases, we must schedule an urgent conference or motion to deal with pressing parenting issues immediately, but in many other cases, we negotiate a parenting plan or refer clients to mediation. We need to know as early as possible if the children’s issues need to be addressed so we can take steps to alleviate difficulties in the short and longer term.
Best Interests of the Child
All professionals who work in the family law sphere (ie: lawyers, judges, psychologists and counsellors), have an obligation to focus on the best interests of the child(ren). Separating parents often have different ideas about what should be done with respect to parenting time and decision making, but the guiding principle for any of these disputes is an objective one which is focused on the child. In family law matters you’ll hear the term “best interests of the child” referenced quite a lot.
What is in the best interests of the child may not be easy to determine or agree upon. It is defined in the Divorce Act1 , and the Children’s Law Reform Act2 for the purposes of determining parenting time and decision making. It includes consideration of a child’s physical, emotional and psychological safety, security and well-being. To determine best interests in a particular case, there are a long list of factors (listed in the Divorce Act) that a judge must take into account.
The best interests test permeates quite a lot of what we do in family law. For example, if a Court finds that a provision of a domestic contract is not in a child’s best interests, the Court may disregard that provision even though the parties thought it was reasonable.3 Parents may each put forward a position regarding parenting terms which they believe are reasonable and a judge may instead order a solution which is different than what either party requested.
The Term “Custody” is No Longer in Use
Many people come to the family law process wanting to understand more about “custody” of children. It’s important to know that we don’t use the word “custody” anymore in Ontario.4 There was always confusion about this term and what it meant. Also, the term was a lightening rod for disputes. It inflamed people and caused unnecessary conflict so there were amendments in 2020 to eliminate that term completely from the relevant Ontario legislation.
Now things are much simpler and clearer. Instead of deciding who has “custody” when parents separate, instead we focus on:
- how decisions will be made for the children; and.
- how parenting time will be divided between parents.
There is a lot that can be said about disputes relating to parenting time and decision making, which will be covered in other posts. For now, it’s useful to know that if you are separating you need to agree upon these two issues with your former spouse as well as potentially many other issues. This could be straightforward for some people, or it could become a multi year court battle. The amount of time and money it takes to resolve these issues varies greatly depending on the issues and conflict.
Parenting Plans
If you are wondering what a parenting plan for separated spouses looks like or are seeking to develop a plan for your family, you can find an extremely helpful Guide and Template from the Association of Family and Conciliation Courts (AFCC).
The AFCC Parenting Plan Guide and Template are often used by lawyers, mediators, judges and parents themselves. These materials can help, for example, if there is a need for a written agreement regarding the division of parenting time for a certain age range of children. A parenting schedule for an infant will look very different than a schedule for a teenager. Parenting plans cover a vast range of issues such as holiday time, decision making for health, education and religion. While it isn’t a hard and fast rule, we find that the greater the conflict between separating spouses, the greater the need for a very detailed parenting plan. Having a plan in place ensures less confusion and these plans often include an Alternative Dispute Resolution5 mechanism for addressing disputes quickly. If you are separated and trying to understand how to address the issues of parenting, this is an excellent place to start.
Mediation Services
While there is no question that parenting disputes may need to be litigated, there are other ways to resolve these issues outside of the court realm. Unless the parenting issues are urgent, the court process can be lengthy, slow, costly and ineffective to address specific parenting concerns. Mediation can be an extraordinarily effective tool for resolving parenting disputes quickly. You can find parenting mediators and/or arbitrators through several different private organizations, such as the Ontario Association for Family Mediation (OAFM) or the Family Dispute Resolution Institute of Ontario (FDRIO). Courthouses often also have mediation services onsite which are free or subsidized, such as Mediate393.
Mediators can assist the parties in resolving their disputes but have no power to make decisions. If the parties require a decision to be made quickly, which has the force of a court order, arbitration is the more appropriate option. An arbitrator is privately retained but can be empowered by the parties to make binding decisions that have the force of a court order.
A mediator and arbitrator for a particular dispute may be the same person. This is referred to as mediation/arbitration. The parties first try to resolve the dispute with the assistance of the mediator. If they can’t settle, the mediator then exercises arbitral power to make a decision which is binding.
Parenting co-ordinators are professionals who assist parties in putting into practice their parenting plans or parenting orders. If there are ongoing disputes regarding the implementation of parenting time, for example, a parenting co-ordinator can make quick decisions where necessary to resolve the dispute much more quickly and cost efficiently than if the parties sought assistance from the court.
- R.S.C., 1985, c. 3 (2nd Supp). (see s. 16) Applicable for parents who are married and separating. ↩︎
- R.S.O. 1990, c. C.12. (see s. 24) Applicable for parents who are not married and separating. ↩︎
- See s. 56 (1) of the Family Law Act, R.S.O. 1990, c. F.3 ↩︎
- This change in terminology has also been implemented at the federal level in the Divorce Act ↩︎
- Typical ADR clauses will include an agreement to attend mediation and/or arbitration in the event of a future parenting dispute. ↩︎
