Mothers and fathers enjoy equal parental rights across Canada, regardless of whether they are married, separated or divorced.
Every parent has the right to spend time with his/her child and contribute to the decisions made about the child’s upbringing — unless these rights are removed by the family law courts, which seldom occurs.
Sometimes, a father needs to assert these rights with legal action to gain custody, access or guardianship of the child after separation or divorce. Here’s what you need to know about fathers’ rights and how to assert them in Ontario.
Key Parental Legislation in Ontario
The main legislation governing what happens to children in the event of a marriage breakdown is the federal Divorce Act and Ontario’s Family Law Act.
Unlike in some other provinces, the local Family Law Act does not cover common-law relationships (only separated or divorced spouses) — and neither does federal legislation — but both parents still retain equal rights to access and custody of their children.
The federal Divorce Act is predominantly used for custody and access decisions. The Ontario courts are very reluctant to remove a father’s (or mother’s) rights as regular contact with both parents is generally viewed as being in the child’s best interests: the standard used in all family law cases concerning children.
Child custody and father’s rights
There has traditionally been a tendency for custody decisions to be made in favour of the mothers but according to family law in Ontario, both parents retain equal rights to custody.
According to the Department of Justice, only a few percent of children under the age of 12 were placed in their father’s custody. Modern courts in Ontario prefer joint custody arrangements wherever possible and practical.
We should keep in mind that custody decisions require consideration of both legal custody and physical custody.
- Joint legal custody refers to both parents being involved in the decision-making responsibility for the upbringing of the child.
- Joint physical custody refers to the child spending at least 40 percent of their time with each parent.
In sole custody situations, only one parent has custody of the children. The children reside with the parent who has sole rights to look after and make decisions for the child — and the other parent may or may not have access and visitation rights.
To gain sole custody of the child, a father would need to prove to a judge that it is in the best interests of the child for this arrangement to be in place. That’s generally a difficult task — and one that usually requires the expertise of a seasoned child custody lawyer.
Bear in mind that a father’s rights come second to the rights and interests of the child in all decisions made regarding that child — although most Ontario family law judges are adept at balancing the rights and responsibilities of all parties for fair resolutions.
Custody “battles” during divorces are generally unwelcome because of their potentially negative effect on both the child and the future relationship between the mother and father, which could further damage the child’s wellbeing.
From our experience, matters involving children are best resolved with discussion, mediation and negotiation between parents out of court. Our child custody lawyers can help facilitate this or represent you in mediation sessions if necessary.
Fathers’ rights and access in Ontario
The Divorce Act refers to “access”, which is the time that a parent without primary custody spends with the child after they separate or divorce.
The father retains the right to fair, generous or “liberal” access unless this right is removed — as does the mother. Both parents may generally retain this right even if the other parent is granted sole custody of the child.
However, the right may be removed if the child is deemed to be placed in danger by retaining contact with either parent. This usually happens only in extreme cases involving family violence, drug dependency, firearms, etc.
Guardianship for fathers in Ontario
The biological parents are, by default, the guardians of their children. They have the rights and obligations to make decisions in the best interests of the child. If the mother dies, the father becomes the sole legal guardian by default.
Guardianship may be required if a minor child’s biological parents have both died, are otherwise absent or the parent(s) are incapable of caring for their child. In such cases, a court order or signed agreement must be in place. Sometimes, a guardian is appointed in a legally enforceable will of a parent who passes away — often a grandparent, other family member or close friend.
Under the Family Law Act, the guardian has similar (but slightly more limited) rights and obligations to the parent. For instance, he/she has the right to spend time with the child to exercise his or her powers and the authority to decide on the care of the child.
It’s best to involve an experienced family lawyer in any guardianship issues that may arise so that legally valid documents can be prepared for the court. This can reduce the time that applicants must spend in court, organizing paperwork.
If you have any unresolved custody issues, speak with an experienced child custody lawyer. Book a consultation with Amiri Family Law in Ontario and we will advise you of your legal options.