Protecting your Custodial Rights

November 2014

Relationship breakdowns are emotionally difficult times, particularly when children are involved. Always seek legal advice prior to separating, or as soon thereafter as possible. This is a critical time…the days and weeks immediately after separations often set the tone for the final outcome of custody and access to your children.

  1. Do Not Leave the Matrimonial Home with the Children – Short of risk of harm or physical abuse to you or your children, you cannot leave the matrimonial home with the children. You need written consent from either your partner or a court order. If you leave the home where risk does not exist without prior written consent, the Court could award your spouse temporary custody of the children as a Judge may decide that you have acquiesced or consented to your spouse having custody. Temporary custody orders can be very difficult and expensive to overturn at trial.
  2. Both Parents are Equally Entitled to Custody of the Children – Further to point number one, barring physical or emotional abuse of the children, it is up to the courts to determine if one parent is to have custody rights over the other.
  3. Legal Aid – Custody and access cases can be very expensive. There is legal aid available for qualified individuals who cannot afford a lawyer. For information, call Legal Aid at 433-8179.
  4. Put the Children’s Well Being First – Make sure you never act unreasonably. While you and your spouse may not get along, children can be profoundly damaged by their parents arguing. Never bad-mouth your spouse to the children. There are programs available to help you understand the effects of the breakdown of the parental relationship on the children. For information, contact Merrymount Children’s Centre at 434-6848.
  5. Personal and Mediated Agreements – If feasible, attempt to reach an agreement between yourselves. You should still have some assistance from a lawyer who can advise you on the legal issues. Mediation is a cost effective way of coming to an agreement. Mediators are experienced and trained individuals who can be effective at helping you and your spouse come to an agreement. There are private mediators available. You may also obtain more information about mediation by calling the Family Mediation Centre at 660-3154.
  6. Abuse – In cases where the children are being abused by your spouse, contact the Children’s Aid Society at 455-9000. In fact, if you know your children are being abused, you are under a legal obligation to protect them.

Author

Iain is head of the family law department, and practises in the area of family law, estate litigation and pension litigation. With close to two decades of experience as a practising lawyer, Iain has extensive experience, including at the Ontario Court of Appeal, in mitigating relationship breakdowns. While he has extensive and considerable success in court, many of his cases are resolved without resorting to court or extensive legal involvement. More →