Don’t get left out in the cold in family court. Starting March 1, 2021, family courts have a new way of referring to the time you spend with your kids when you divorce or separate in Ontario. It’s called decision-making responsibility and parenting time.
Making Decisions Alone or Together
Family courts expect parents to take decision-making responsibility for everything from their children’s health to education, language and religion. The new term replaces child custody. Federal Divorce Act changes next year encourage parents to settle their problems out of court, through mediation, collaborative negotiation or arbitration.When a parent can’t or won’t cooperate, the courts may intervene.
Who Gets the Kids
Courts prefer parents agree on their own where their kids will live. Cooperating shows you’ve set your differences aside for your children’s sake. If you can’t, the judge will decide what’s in the best interests of the child:
- Joint care and control, sharing in important decisions together.
- Shared decision making, where your children live with each parent at least 40% of the time.
- Sole decision making, meaning your children live with you 100% of the time and you make all the important decisions.
- Split, where older children live with one parent exclusively. FYI, courts usually keep children together.
Deciding On Their Best Interests
After March 1, courts and you must consider:
- your children’s views and preferences
- court actions or orders about safety and well-being
- and any potential for family violence
in making decisions about your children’s best interests. Your kids’ physical, emotional and psychological safety, security and well-being take priority over everything else.
Seeing Your Kids
Of course you want to see your kids. You get to make day-to-day decisions, and some emergency ones, when your children spend parenting time with you. Grandparents and other relatives or significant people in your kids’ lives may also want “contact time”.
When to Use Parenting Affidavits
Which brings us to affidavits. You or your lawyer will have to prepare an affidavit if you want to make changes to a parenting plan, separation agreement, parenting time or decision making responsibility. Where your child lives, their medical or education needs, moving to a new city for a job or conflict with your partner can all warrant a family court affidavit.
Making a Family Court Affidavit
Now is your chance to tell your story using a parenting affidavit, Form 35.1. You can explain your family circumstances — when you and your partner married or began living together, had children, who your children are, when you separated and where everyone lives now. Add information about who is currently caring for your children and any others from previous relationships.
Ask For What You Want
Why are you even making an affidavit? Courts want to know what “your ask” is. Be clear about the parenting time or other arrangements you are seeking. State if they are medical or related to how your children are schooled or what church or religion they belong to. Explain what arrangements you have made for child support, alimony or spousal payments, property division or equalization payments and possession of your matrimonial homes.
What to Include
Facts you may need in your parenting affidavit:
- who was the primary caregiver in past
- your past and current parenting plan
- how you will meet your children’s needs and give them a stable home when they are with you
- if or why your partner’s parenting time should be limited or supervised
- if you want child support or alimony or are being asked for it, your past and current earnings and your partner’s
- any concerns you have about your partner’s activities or associates, such as if you believe your children are in danger
- who will live in the matrimonial homes
- or if you want to live in a matrimonial home on your own, called exclusive possession, why that is in your children’s best interests.
How Your Family Lawyer Can Assist
Family lawyers collect your information and evidence to draft the parenting affidavit. Review the draft to ensure it is accurate and reflects what you want. Your signature is legally binding and verifies the contents are true. Your lawyer can also arrange affidavits from others if you need character or other witnesses. Even if you can’t afford a lawyer, consider paying for a few hours of legal advice on preparing a parenting affidavit. You don’t want to be lose your case by being too stingy.
Nine Things Your Lawyer Wants to Know
Before you meet with a family lawyer, ask yourself these questions about your parenting plans:
- Did you and your partner want children?
- How much time did you spend at home with the children before separating, compared to now?
- Who cared for the children as toddlers, when they came home from school and while your partner or you were working? How will you manage that now?
- How did you and your partner make decisions about the children’s schooling, health, education and other matters? How will you share those decisions now?
- Who organized their day-to-day activities, like birthday parties, play dates, child care or after school arrangements, made school lunches, supervised homework and took them to and from extracurricular activities or friends’ homes?
- Who arranged and got the children to medical, dental or other appointments?
- Did you participate in parent-teacher sessions?
- How much time do your children spend with you since your separation or divorce?
- How will you ensure your kids have a stable, caring home life?
It’s helpful to back up what you have to say with testimonials or affidavits from other adults who matter in your children’s lives. Like grandparents, teachers, coaches or medical professionals who know you and your children well. Making your case in court could depend on it.
Draft an Affidavit for Ontario Family Court
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