A child custody matter typical represents one of the most emotionally challenging and legally complex of all family law cases brought before Canadian courts. With that said, a person facing the prospect of involvement in a child custody dispute in Canada must have a general understanding of the essential elements of the law. In addition, a parent needs to understand the benefits to be derived from engaging the services of an experienced family lawyer.
Legal Standard Used in Canadian Child Custody Cases
A Canadian court utilizes what is commonly referred to as the best interests of the child standard when making decisions regarding child custody. The specific desires of the parents take a backseat to what is best for the child that is the subject of child custody proceedings.
Factors Considered in a Child Custody Case
In working to reach a determination of what is in the best interests of a child, a court considers a number of factors. The final decision made by a court in regard to child custody depends on the specific facts and circumstances surrounding a particular case.
One of the common factors contemplated by a court in a child custody case is which parent historically provided primary care for a child. In addition, a court will also focus on the overall physical, mental, and emotional health of both parents as well as the child or children.
Other factors taken into consideration by the court include the residential situation of each parent, the basic parenting abilities of each party, and sibling-related matters, if there is more than one child.
Child’s Desires
In a good many cases, the Office of the Children’s Lawyer is appointed by the court in a child custody case. The individual appointed is charged with the task of ascertaining what a child desires in regard to a custodial arrangement, and why. In Canada, the wishes of a child over the age of 12 commonly are respected by the court when making a custody determination. In other words, the presumption is that the child’s desires will be respected if he or she if 12 or older unless there exists a compelling reason not to do so.
Depending on the age and maturity level of a younger child, the court will listen to what the child indicates is a preference, oftentimes through the appointed attorney. However, a court will just use a young child’s preference as one of the different factors to be considered, without the weight given to the preference of a child of 12 years or older.
A family lawyer will schedule an initial consultation to discuss the specifics of a child custody case. As a general rule, family lawyer does not charge a fee for an initial consultation.
