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Custody - General

Although there are some differences between the Divorce Act (federal) and Ontario legislation, a child is normally a child as long as he or she is under the age of majority (18 years in Ontario).

The Divorce Act definition of child presupposes that the child has not “withdrawn” from the Parent's charge or control and also allows that children with illness or disability can remain a child past this age.

Under Ontario legislation, a child ceases to be a child upon attaining the age of eighteen years, unless still in school full time. Normally, a child must be a ‘habitually resident' in Ontario, before an Ontario court will make a custody or access order with respect to that child.

The Province of Ontario has in place very specific directions to courts that deal with issues of custody and access. These directions are applied by the court to a case that is brought before it but these issues are common sense issues that are also relevant in cases under the Divorce Act.

'Best Interest' Test

Section 24, of the Children's Law Reform Act of provides that an application regarding custody of a child or access to a child is to be determined on the basis of what is in the “best interests” of the child. Section 24 more particularly instructs the court to consider all of the child’s needs and circumstances, including the following;

(a) the love, affection and emotional ties between the child and (i) each person entitled to or claiming custody of or access to the child, (ii) and other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed for the child’s care and upbringing; (f) the permanence and stability of the family unit with by each person applying for custody of or access to the child it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Past Conduct of a Parent

The Children's Law Reform Act allows the past conduct of a parent to be considered by the court in some instances.