Someone mustering up the courage to walk into a law firm and boldly declares, “I want a divorce! What’s the damage gonna be?”
The gist of it all? If you can avoid divorce, do so; and if you can settle it amicably without going to court, even better.
Seeing that the person is only concerned about the cost, the lawyer reluctantly says, “It’s gonna set you back a few grand at least.”
The client responds, “Oh, that’s not too bad.”
The lawyer inquires, “So, are you and your spouse gonna have any financial disputes?”
The client admits, “Yeah, there will be.”
Quickly, the lawyer adds, “About that initial quote, we’re gonna need to slap another zero on it.”
The client gulps.
The lawyer continues, “And are you two gonna fight over the kids?”
The client nods, “Yes.”
The lawyer concludes, “Well, then we need to tack on yet another zero.”
In typical divorce cases, the most common disputes revolve around:
- Custody dispute
- Spousal support
- Child support
This article aims to provide a basic understanding of how courts approach and routinely handle custody disputes.
In the Divorce Act, the original terminology used to be:
- “Custody”, referring to “guardianship,” primarily for parents, and
- “Access”, meaning “visitation rights,” for other significant figures like grandparents
However, post-2020, these terms have been awkwardly changed to:
- “Parenting”, and
- “Contact”, for other important family members.
Personally, I still prefer using “custody”, it just seems more fitting to the context.
A cardinal rule in family law, applicable at all times and in all circumstances, is prioritizing the child’s welfare, known as the Best Interest of the Child (BIC). This overarching principle often simplifies and clarifies the question of “who gets the child.”
Because of this guiding principle, the decision of child custody becomes relatively straightforward and transparent. The court, based on evidence and the arguments presented, will rule in a manner that best serves the BIC.
So, what aspects does the court consider when assessing the BIC? This is a crucial question. The 2020 Divorce Act specifically added a section, s.16, to explain the factors encompassing BIC, thus providing clarity.
- the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
- the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
- each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
- the history of care of the child;
- the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
- the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- any plans for the child’s care;
- the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
- the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
- any family violence and its impact on, among other things;
- any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Moreover, case law provides three significant additions to these eleven principles, further enriching the understanding of BIC:
- Status Quo
- Aiming to preserve status quo Johal v Johal
- Primary Caregiver
- Parent who was primary care-giver during marriage is likely to receive custody MAG v PLM
- Actual period of time spent with child could be determinant Burns v Burns
- Who the child sees as the primary parent is relevant MAS v JSS
- If neither parent is the primary; they share responsibility in custody NDL v MSL
- Siblings
- Court doesn’t like splitting siblings McPhail v Karasek
