CHILD CUSTODY LAWYER ONTARIO

CHILD SUPPORT LAWYER

At the time of separation both biological parents have the right to raise their children and to make decisions about their upbringing. The legal term custody means all the rights and duties pertaining to child’s care such as rights to make all important decisions including child’s school, religion, medical decisions as well as every day decisions. The parent who has primary lives is usually referred as the custodial parent whereas the other parent who usually visits and spend limited time with the child, and merely want to know about the child’s health, well-being and education, is referred as a non-custodian parent. A non-custodian parent will be seeking for an access Order from the court.

At Shaikh Law we try our level best to make the process of obtaining Child Custody & Access Orders as easy as possible. We have fixed fees for Consent Orders to assist you in budgeting throughout the process. Unfortunately, in some cases Court intervention is necessary to decide an issue that is unable to be resolved by the parties. If this is the case, our Child Custody lawyer will give you the best legal advice and support at every stage; and work to get the very best solution for you and the children.

What is Sole Custody

Sole custody is where one parent has the right make major decisions child’s health, education and religious teaching, physical care and control. Usually Sole Custody Order is coupled with an order for the other parent will have reasonable or liberal access and has the right to know about the decisions custodian parents makes but he/she cannot make the decisions for the child. If communication or co-operations is an issue then the court will grant a specified access order which will lay out exactly when and under what conditions the other parent is entitled to have contact with the child. Where there are protection concerns, the court may order that a third party may supervise the access.

What is Joint Custody

Joint custody means both parents have the right to make joint decision-making authority on major decisions about the child’s life, which requires both of them to work together. Joint Custody is further divided into two categories:

Joint Custody with Primary Care and Control means that the child primary residence is with one parent and the child sees the other parent on weekends and holidays as well as at other times when it is in the best interest of the child. Both parents continue to make Joint decision about the child’s up bring.

Joint Custody with Periods of Care and Control means the child spends weekends, holiday as well as at other times when it is in the best interest of the child. The child’s primary residence will be with the parent who has primary care and control.

Joint Custody will only work if both parents are able to communicate in a co-operative manner for exchange of information pertaining to the child because the key factor to Joint Custody is Joint Decision making authority. If the Court knows the parents do not get along, or if there is or was abuse, the Court is less likely to order joint custody. Joint custody does not necessarily mean that the child spends the same amount of time living with each parent.

What is Shared Custody

Shared Custody means where the child spends not less than 40 percent of the time with each parent and each parent exercises a right of access to, or has physical custody or care and control of a child for not less than 40 per cent of the time over the course of a year.” For example of 2/2/3 which basically means that the child spends two days with one parent and two days with another parent and then three days with one parents.

CHILD CUSTODY AGREEMENT

At Shaikh law we have the necessary experience and the expertise to skillfully draft a Child Custody & Visitation Agreement. Our Job is to work out a parenting plan which is best for the child. We seek to ensure that the Agreement is in compliance with all the family law rules in Canada with an aim to providing best legal solutions to your case. Our advice is designed to minimise upheaval and disruption in a child life and will always ensure that the best interest of the child is the primary consideration.

At Shaikh law we are dedicated to providing highest quality of Legal Service in Divorce & Family law matters. We provide skillful representation you need during the difficult time of your Divorce. The outcome of any Divorce & family law matter can impact you and your children for years into the future. We are diligent in our efforts to resolve every case in a way that provides the most benefit to our clients.

Child Custody & Access

Who is a primary caregiver parent

A primary caregiver is a parent where the child primarily resides, which is usually the custodian parent or in other words the parent who has the physical custody of the child. Primary care and control can be easily identified in sole custody as well as Joint Custody situations but not shared custody primary care and control overlaps between both parents.

Difference between Joint Custody and Primary Care

Joint custody means both parents have the right to make joint decision-making authority on major decisions about the child’s life, which requires both of them to work together.

Joint Custody with Primary Care and Control means that the child’s primary residence is with one parent and the child sees the other parent on weekends and holidays as well as at other times when it is in the best interest of the child. Both parents continue to make Joint decision about the child’s up bring.

Factors in Deciding who get Custody

The paramount consideration for the courts is to evaluate the best interests of the child in light of facts of each case. The Courts will considers

The Ability of each parent to care for the child, such as difficulties caused due to the work commitments, travel, distance, available time to spend with the child.
Child’s Age, health, special needs and requirements
The existence of love and affection ties between the child and his or her parent, friends, other close and extended family members.
Any history of neglect to visit the child, alchol, drugs or violence or abuse by either parent.
The Length of time a child has lived at a stable home environment
Education provided or is available to the child
Child preferences is given significant weight if the child is 14 years of age or above
Child Cultural and religions affiliations

Types of Access or Visitation

Reasonable Access means that the non-custodian parent will get access as the parties may agree from time to time. This type of access only works where the communication and understanding between both parties is good.

Specified Access occurs when the parents are unable to communicate well or at all. The courts will recommend the parties to use tools such as a family wizard to curb this problem but the cost for such tool is high and many would opt not to use such online tools. Specified Access sets out the terms and conditions of visits, such as exact pick and drop times and the length of time spent during the visit, restrictions on the use of alcohol 12 hours prior to the visit, specific dates visits can occur. Courts are willing to grant gradual increase in visits over a period of time if the visits that occur are beneficial for the child.

Supervised access means that the non-custodian parent cannot be alone with the child. Supervised Visits occurs where the safety of the child is a concern for the custodian parent. This could be on grounds of health concerns, neglect in the past, violence, drugs or alcohol abuse. The person who supervises the visits can be a member of the family, or third party such as common friend or at a supervised center provided by the Government in your province.

No access in exception cases the courts are going to decline access or visits of the child with the other parent. The child has a right to know his non-custodian parent and therefore the custodian parent cannot without the child from visiting or knowing his or her non- custodian parent. The courts will only deny access or deny visits to a parent if there is sufficient evidence to establish that the child can be physically and emotionally harmed by that parent.

Child Support & Access

Access to a non – custodian parent is not dependent on payment of child support and therefore failure to pay child support is not a ground to refuse access to a parent.

Change of Residence & Access

It is common for the Courts to pass an order that neither party will remove the child from the Jurisdiction of the Court without the written consent of the other parent or a Court Order. This Court Order means that the residence of the child shall not be changed or moved out of city, province or town to render the other parent from having access to the child, however this does not mean that the custodian parent cannot go on vacations or travel with the child.

Moving with the Child

At times a parent might want to move to a different province or city or town because the parent wants to be closer to other family members for support or for better job prospects. Then in such circumstances the custodian parent would have to move a motion before the court with a hope that the parent can satisfy the court that it is in the best interest of the child to move from the current place of residence. If the move is allowed by the Court then the non- custodian parent will be allowed longer and more liberal times of visits keeping in account that their visits would not be so frequent.

Traveling with the Child

Even if you have a primary custody of the child by way of a court order or by way of verbal understanding the custodian parent cannot take the child outside Canada without the permission of the other parent.

The courts will allow travel with the child subject to conditions and with a travel itinerary as well as contact details in case of emergency.

Change Custody & Access Order

Custody & Access order can be changed by filing a motion in Court on the grounds of change in circumstance, which has resulted in change in the custody schedule. It may be by way of consent for example the custodian parent may give up his/her right primary custody due to illness, loss of job or due to the fact that the children preference is to spend more time with the non-custodian parent.

What is a Consent Custody Order

Where both parties agree to the terms of custody and access then they file a Consent Order in Court. This can be done through a lawyer or without a lawyer. However obtaining Independent Legal Advise is highly recommend. The Consent Order will set out the terms of the Order describing the rights and responsibilities of each parent and how the parenting plan will work. This Consent Order will be submitted at the court house registry for filing. The Registry will then review it before accepting the Consent Order to ensure that it has complied with all the formalities of a Consent Order in light of the Family Law Rules. Then the Court Registry will forward the Consent Order to the Judge who will review the terms of Consent Order in Light of the Family Laws in Canada and if the Judge finds that the terms of the Consent Order is acceptable in form and content, then the Judge will endorse the Order which will then be returned to the parties or their lawyers once signed by the Judge.

What is Child Support

In Canada there is presumptive rules to pay child support as per the tabled amount set by the Government. Once can always look up child support guidelines to calculate the amount of child support payable.

Child Support is the child right and both parents have an obligation to provide for their child with all the necessities of life, such as food, shelter and clothing. The obligation for child support continues until the child is 18 years of Age or until the Child is not a child of marriage. In other words the Child is no longer a child of marriage if the child is no longer a dependent on the parents or is not going to school or University or perhaps has moved out of the home and has a job to sustain him or herself. If the child is pursuing post – secondary education then the court will look into the circumstances of the paying parent income and the financial and emotional dependency of the child to decide the amount of child support.

The Courts will not allow the parents to agree that child support is not payable, unless there are exceptional circumstances such as undue hardship on the paying parent.

Child Support Amount be Varied

Yes the Child Support amount can be varied from time to time but the burden to prove that the child support amount should be varied in light of changed circumstances is significantly strict.

That primary grounds for change of child support amount are that the paying parent income has changed, or the paying parent has lost his or her job, has been incarcerated; has another child from another relationship or the child’s need require more payment of support due to child care, health care, or education.

What is imputation of Income

Imputation of income means that the courts will not treated the reported income of a paying parent as a guideline income for the purposes of calculating child support but the court will determine an income appropriate in the circumstances of the case in light of the facts that the paying parent is purposefully underemployed or unemployed and therefore paying parent is capable to earning amount determined by the court.

The Court will consider the following reasons when deciding imputation of income.

Reasons for underemployment or unemployment.
Attempts made by the paying parent to apply for jobs.
What is the earning capacity of the paying parent in light of his education, work experience and skills.
Last reported income or last three paystubs would be a good guide in deciding the paying parent’s capacity to pay.
Assets and liabilities of the paying parent such as bank balance, cars, rental property to determine if the paying parent can still afford to pay child support.
Ability of the paying parent to earn a minimum wage, if there are no compelling reason why the paying parent should not be earning minimum wage then the courts would impute minimum wage as a guideline amount for calculating child support.

What is undue hardship for Child Support

If the paying parent is seeking to lower their child support amount on grounds of undue hardship as oppose to loss of job or under employment, then the parent must establish that

There might be another child or children from another relationship for whom the paying parent is liable to pay child support amount and after deducting all expense he/she is unable to pay the guideline amount.
He or she has high level of debts which has incurred to support the spouses and their children prior to the separation or to earn a living;
There are extra-ordinary costs and expenses involved to exercise access such as travel expenses;
There might a court order and an agreement to support another person which is rendering the paying parent unable to pay the guideline child support amount.
The standard of living of paying parent is being deteriorate on account of paying the guideline amount.

It important to note that the courts are not easily satisfied to grant reduction in child support amount on grounds of undue hardship. The evidence required for undue hardship is significantly high.

What are Special & Extraordinary Expenses

As per section 3 of the Federal Child Support Guidelines the court will consider the following factors.

Special or extraordinary expenses

7.(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
that portion of the medical and dental insurance premiums attributable to the child;
health related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counseling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
expenses for post-secondary education; and
extraordinary expenses for extracurricular activities.

Failure to Comply with a Court Order

Failure to comply with court order under section 24 of Federal Child Support Guidelines the court may

1. strike out any of the spouse’s pleadings;

1. make a contempt order against the spouse;

1. proceed to a hearing, in the course of which it may draw an adverse inference against the spouse and impute income to that spouse in such amount as it considers appropriate; and

1. award costs in favour of the other spouse up to an amount that fully compensates the other spouse for all costs incurred in the proceedings.

Fixed Fees

Our dedicated Family & Divorce Lawyer at Shaikh Law are ready to help you deal with your Divorce on Fixed Fees basis. If both parties have agreed to divorce or dissolve your common law relationship, our fixed fee option is quick, cost effect, easy and gives you peace of mind.

Legal Aid Certificates

There’s no need to worry about costs, as we accept Legal Aid Certificates and for those who do not qualify for Legal Aid we allow our clients to pay their fees in installments over a period of time. We have a fixed fees or transparent fees structure, depending on the complexity of the case. Call now for your first 30 (thirty) minutes of free consultation.

Why Choose Us?

We will explain the process clearly and keep you informed about what is happening at each stage.
We provide cost-effective solutions tailored to your situation and will provide clear information about costs, allowing you to manage your outgoings.
We care about our clients.