Understanding custody arrangements and court orders issued by the criminal or family law courts
Parental Separation and Custody Arrangements
Separation Agreements and Court Orders of Custody
Background
The primary responsibility of a child care setting is to ensure that the health, safety and well-being of the children in care are maintained at all times. Intrinsic to accomplishing this is the open sharing of often very private information between parents and child care providers. This is never more important than in situations of family breakdown, as the effects of parental separation on children can be devastating. Parents and providers must work even more closely at such times to ensure the children’s mental and physical well-being is maintained. The following information is provided as a guide to assist child care facilities to understand the terminology and legalities associated with family breakdown.
Parental Separation and Custody Arrangements
When a relationship (married or common-law) breaks up, the parents can work out their custody arrangements themselves and enter into a written agreement (separation agreement) setting out those arrangements. If the parents cannot agree upon the custody arrangement, either separated spouse may apply to court at any time for a court order under The Family Maintenance Act or the Divorce Act. Custody agreements and orders generally take one of two forms: sole custody or joint custody.
Sole custody is where one parent is entitled to make all the decisions regarding the child (for example, the child’s school, religious training, medical treatments and extra-curricular activities). The parent with sole custody usually also has primary care and control of the child, that is, the child lives with that parent. Where one parent has sole custody, the other parent normally has the right to spend time with the child (access or visitation rights). Both the custodial and the non-custodial parent have the same rights to receive school, medical, psychological, dental and other reports about the child, unless a court order has ordered otherwise. This includes child care records.
Joint custody is where both parents have the legal right to jointly make major decisions about the child’s care and upbringing, although a court order or agreement of joint custody often provides that one parent has the ultimate decision-making power where they cannot agree. Sometimes parents with joint custody also have shared or divided physical care and control. This means that the child spends equal amounts of time with both parents. However, this is rare. In fact, in most cases, the living arrangements in joint custody are really no different from sole custody. One parent will have primary physical care and control. The other parent will have care and control at times to be agreed or as ordered, that is, the child visits with the other parent at certain times.
Access arrangements can vary tremendously. One non-custodial parent may have the right to have the children every week-end and two or more evenings during the week. Another may have only a monthly two-hour visit supervised by a third party. Sometimes the court order or agreement specifies exactly when the non-custodial parent has access, or care and control (for example, Saturday from 2 p.m. to 6 p.m.). In these cases, the parent with specified access has no right to visit the child outside the periods specified without the permission of the custodial parent or the parent having primary care and control.
Sometimes, the order or agreement contains general terms such as “generous and liberal access” or “reasonable access”. Parents with such non-specified access must arrange for access with the parent with sole custody or primary care and control. They have no right to access without the agreement of that parent who has custody or primary care and control. Accordingly, child care facilities should not allow non-custodial parents any access at any times not specified in the court order or agreement (including telephone calls) without the express consent of the custodial parent. (It should be noted that, if the parents cannot agree on what is “reasonable access,” either parent can apply to the court for an order specifying access.) Where there is no court order of custody or custody agreement, both parents have equal rights to the custody and control of their child (joint custody) if they have lived together after the birth of the child. This means that when parents break up, both parents continue to have equal legal rights to the care and custody and control of their child until a court orders otherwise or they agree otherwise. The only exception to this is where the parents have never lived together after the child’s birth. Under The Family Maintenance Act, the parent with whom the child is living is deemed to have sole custody.
As a result, during the period after breakdown but before custody has been decided by agreement or court order, child care facilities should continue to respect each parent’s equal right to information and to making decisions about the child. This means that either parent can be approached for information or authorizations for such matters as field trips. However, if the parties have been separated for a period, and the non-caregiving parent attends and picks up the child at the day care, this may be a breach of the law. In addition, if one parent advises you that the child is in danger of abuse by the other parent or that the other parent may abduct the child (remove the child with the intention of depriving the other parent of possession, as discussed below) child care facilities should not release the child to the other parent without authorization from the complainant parent. If the complainant parent refuses to consent, and the other parent is insistent, the child care facility should contact the nearest Child and Family Services agency and/or the police to resolve the situation. The complainant parent should be advised to seek legal advice, if they have not already done so. When necessary, the complainant parent can obtain custody orders very quickly.
Separation Agreements and Court Orders of Custody
A wife and husband may enter into a written agreement upon separating. Through such an agreement, they can finally settle all issues, including custody, and thus avoid court proceedings (or cut short proceedings already begun) except those required to obtain the divorce order needed to end a marriage. A separation agreement is a binding legal contract, and will be enforced by the courts. Custody arrangements set out in separation agreements can be changed only if the parties agree, or a court orders differently. However, until a new agreement has been finalized or a court order pronounced, the original agreement regarding custody continues to be in effect.
Similarly, a court order remains in effect until it is varied. Several court orders may be issued over time when parents are disputing custody or access. When the parties first separate, an interim order may be issued to govern the situation until a trial can be held and a final order pronounced. The final order may later be changed by a variation order. The most recent court order is the order in effect.
In all cases where parents have separated, the child care facility should ask the parents to give them a copy of the separation agreement or court order governing custody, (whichever is in effect) or, at the very least, a written statement, signed by both parties, specifying the current custodial arrangements.
Parental Abduction
Where one parent has a court order of custody of a child under 14 and the other parent takes the child away without the custodial parent’s consent, that parent may be charged with abduction. A charge may also be laid if one joint custodial parent takes the child away without the consent of the other joint custodial parent or a parent with an access order. Even where there is no Canadian court order of custody, and one parent takes a child under 14 away from the other parent without the other’s consent, 3 he or she may be charged with abduction under the Criminal Code of Canada if the Minister of Justice (or designate) consents to this.
There are a number of situations where a charge of abduction may be laid if there is no other Canadian custody order. One is where the parents and child have been living together and suddenly one parent takes the child out of Manitoba without the other’s consent, intending to deprive the other of his or her rights as a parent. The second most common situation is where separated parents have agreed in the past that the child is to live with one of them. Unless that parent consents, the other cannot later decide to take the child away without a court order.
A parent charged with abduction may have a defence to the charge if the action was taken to protect the child or the parent from danger, or the other parent agreed he or she could take the child. A Canada-wide warrant may be issued for the arrest of the abducting parent. If convicted of the charge, the parent may be imprisoned for up to ten years.
Family Violence
Both the civil and criminal courts can make orders requiring an abuser (or alleged abuser) to keep away from the victim, adult or child. Where a parent advises a child care facility that there is such a court order, the facility should ask the parent to give them a copy of the court document containing the order. If the abuser breaches the order (for example, a father, ordered to have no contact with his daughter, who appears at the facility to see her), the facility should report this to the police immediately.
Protection and Prevention Orders
A spouse or common-law spouse may apply under The Domestic Violence and Stalking Prevention, Protection and Compensation Act for a court order preventing the other spouse from committing acts of domestic violence or stalking against the spouse. A person disobeying a restraining order can be brought before a Judge and may be fined or imprisoned. Restraining orders do not lapse after a certain amount of time, unless the order specifically states so. The court order continues in effect until a court changes or ends it, even if the spouses reconcile.
Peace Bonds
An order similar to a civil restraining order can be obtained in the criminal courts. This is called a peace bond. A peace bond will generally provide that the alleged abuser have no contact with the victim, including no telephone contact. A peace bond may be thought of as the court’s way to release the accused under orders to behave. If the party does not abide by any of its terms, he or she can be arrested and charged criminally. A peace bond remains in effect for up to one year.
Bail Conditions and Probation Orders
When a person is arrested on charges of abusing his or her spouse or children, the accused may be released from custody pending trial on certain conditions. Usually, these include a prohibition against any contact between the accused and his or her spouse or children. An accused who breaches such a bail condition is subject to additional charges. Such conditions of release remain in effect until the trial takes place or the court changes the conditions of the order. If the accused is convicted, the Judge may imprison him or her and, as part of the probation order, may require him or her to keep away from the victim.
Child Abuse & Neglect
The Child and Family Services Act allows child and family services agencies and the police to intervene to protect children. This legislation defines a child in need of protection as a child whose life, health or emotional well being is endangered by the actions or omissions of a person. Anyone with reason to believe a child is in need of protection must by law report the situation to a parent or guardian or to a child and family services agency. However, the person must report the situation to an agency where he or she does not know the identity of the child’s parent or guardian, believes the parent or guardian is responsible for causing the child to be in need of 4 protection or is unable or unwilling to provide adequate protection, and/or believes the child is or may be suffering abuse.
If the agency believes the child is in need of protection from the parents, it will apprehend the child and take the child to a place of safety, usually to a foster home. If the agency believes it cannot safely return the child to the parents, it will seek an order of Guardianship from the courts. During the time the child is under apprehension and after the child is made a ward of the agency, the parents have no rights to access to the child, except as specified by the agency or the court. In these situations, the child and family services agency will be able to explain what access the parents have, if any.
Child Care Facility Policies Related to Custody Arrangements & Court Orders Issued by the Criminal or Family Law Courts
- The primary responsibility of the child care facility is to the children. All possible steps must be taken to ensure their emotional and physical safety is maintained at all times. This must be clearly communicated to all parents at the time of registration. As well, at the time of registration parent(s) must be informed of their obligations to the facility with regard to assisting the facility to care for their children. To accomplish this, the facility’s registration form could include a clause(s) outlining that in the event of parental separation, the parent or guardian will inform the child care facility of the custody/access arrangements, and where applicable, will supply the child care facility with a copy of the parents’ custody agreement or court orders pertaining to the children in care. If there is no custody agreement or court order, the parents should provide a statement signed by both parents specifying the custody arrangement.
- As child care staff become aware of custody arrangements, they will:
- Review the terms of the custody or access arrangement with the custodial parent, secure a copy of the Custody Agreement/Court Order, or informal agreement, for centre files and complete a flag sheet.
- Review and document with the custodial parent the process to employ in the event that the noncustodial parent appears at or telephones the child care facility.
- Advise the custodial parent that primary responsibility for enforcing Custody/Restraining Orders lies with the parent or guardian(s) and that it is, therefore, incumbent upon the custodial parent or guardian(s) to inform the child care facility of any changes to the legal order(s) pertaining to the children in care.
- Request the custodial parent to explicitly identify or reject (in writing) the non-custodial parent as an “alternate” guardian should an emergency arise and the custodial parent is unavailable.
- Where child care providers become aware of a Court Order issued by either the Criminal Courts or Family Law Courts limiting the access of a parent, child care providers will, in addition to taking the steps previously outlined:
- Request a photograph of the non-custodial parent for the centre file;
- Obtain a signed release from the custodial parent authorizing the child care facility to call for the local Police or RCMP detachment when necessary;
- Remove the children to a safe location, out of sight and sound, should the non-custodial parent appear at the child care facility when prohibited from doing so;
- Carry a copy of the Restraining Order(s) with them at any time the children are out of the child care facility on field trips or outings. A copy of the release form, signed by the custodial parent, should also be carried. This is for the protection of child care providers, as well as of the children. Police are NOT required to act on a Court Order without seeing it.
- Immediately notify the custodial parent or his/her alternate of any incidents or sightings of the non-custodial parent and document, in writing, all such incidents for inclusion in the child care facility records.
- Child care centres should review all Restraining Orders and documentation on file at regular staff meetings, so that all centre staff are aware of the children’s circumstances, as well as the procedures to employ if a sighting of the noncustodial parent takes place.
- Child care providers will allow both custodial and non-custodial parents access to child information pertaining to their children’s health, education and welfare unless a court order provides to the contrary.
- Where there is a discrepancy in the interpretation of a legal order pertaining to a child in child care, child care providers will contact their local Police or RCMP detachment for assistance or advice, prior to discharging the child.
- When confronted with a situation where there are competing Court Orders of custody from different jurisdictions, child care providers should contact their local Police or RCMP detachment for assistance.
- When confronted with competing Court Orders of custody from the same jurisdiction, providers should follow the conditions of the most recent Court Order, unless there is reasonable suspicion, in which case providers should contact their local Police or RCMP detachment for assistance to ensure other Court Orders do not exist.
- Child care providers will, as always, treat information related to custody arrangements and Court Orders as confidential.
- Copies of Court Orders retained by the child care facility should be stored in the children’s personal files.
