When marriage problems eventually cause families to separate, the laws governing child custody in Ontario will always take into account the children's best interest when considering the parenting responsibilities post-separation. To understand how this rather vague concept - "the children's best interest" effects child custody in Ontario let's look at a practical application.
In child custody research looking at the
effects of divorce on children we've seen that children do better when both parents are involved in their care post-separation. As a result, Judges now make joint or shared parenting orders much more frequently than they have in the past. While our laws do not provide for an explicit presumption of joint parenting as other jurisdictions do, there is definitively a trend to promote joint or shared parenting as the vehicle to promote the children's best interest. But should all children be parented equally by both of their parents after a separation?
In child custody cases I tend to see two categories of parent: "parents who need serious help" with their parenting skills, and "the rest of the parents". Don't get me wrong, every parent needs special training to parent pre-separation, during the separation process, and post-separation . I will come back to this issue below.
Marriage problems aside, the parents who "need serious help" are parents with drug or alcohol addictions, parents who commit physical or sexual abuse, or in certain circumstances, parents with untreated psychiatric issues. These parents may require treatment before they are allowed unsupervised time with their children. But the goal will always be to try to assist these people in rehabilitating themselves so that they can parent their children again.
The umbrella of "the rest of the parents" is therefore very wide. It basically represents the majority of people with
marriage problems who separate. Even parents that are grappling with depression, lack of real involvement with the children or emotional abuse (these are challenging concepts for judges because they are often very difficult to prove) will probably fall under the category of "the rest of the parents" and be allowed to parent jointly with the other spouse after separation.
Some clients find this a very difficult concept in child custody to accept because they believe that they are the more superior parent of the two. They want to make a claim to be the primary parent but are frequently advised that the chances of winning would be slim. Making a claim to be the primary parent based on an assertion that one is a superior parent tends to unnecessarily fuel the fight, prolongs the legal process, postpones the opportunity to begin healing, and after all may not be successful.
And while these legal fights for child custody in Ontario go on, the effects of divorce on children continue and the children's best interest is definitively not being promoted by their parents.
My best advice to you to promote your children's best interest and ease the effects of divorce on children in child custody cases is:
-Learn the necessary skills
before you decide to separate ;
-Choose a lawyer that practices in Collaborative Law; and
-Do not get involved in a custody fight simply because you believe your parenting skills are far superior to the other parent's.
In child custody cases, my goal is always to promote respectful separations so that children's suffering is diminished.
Nathalie Boutet is a leading Canadian family law lawyer and co-founder of The NEXT Program. She is also a Deputy Judge in the Ontario Small Claims Court, a local and international teacher and she is a sought after family law lawyer, Mediator and Collaborative Law lawyer. She regularly provides opinions to the Media on current legal matters.
The Children's Law Reform Act if you are unmarried (found here) and the Divorce Act if you are married (found here).
The NEXT Program (www.thenextprogram.com) is the best program that I am aware of to deal with these extremely difficult times. Parents involved in The NEXT Program learn the skills needed to support themselves and their families through separation so that everyone thrives. Parents are encouraged to apply to The NEXT Program as soon as they consider separating.
Visit The NEXT Program website (www.thenextprogram.com) to find out more about how The NEXT Program can help you ease the effects of divorce on children and better promote your children's best interest.
