Custody

 

Family law (Ontario) legislation: custody.  In situations not involving a claim for divorce, custody is regulated provincially and therefore the law varies across Canada, although one may expect and generally will find a high degree of similarity.  Both parents are equally entitled to custody unless, or until, a separation agreement or court order provides otherwise.


Family law (Ontario) legislation: custody and separation.
  Separation is the triggering event in most matrimonial proceedings and may affect the parental entitlement to custody (but not access) as well as the “habitual residence” of the child.


Family law (Ontario) legislation: child’s “habitual residence.”
  In relation to custody or access, the child is always a minor (under eighteen).  A minor’s residence is dependent on the parents’ or parent’s, and therefore upon separation, if the parents are geographically apart, the change may affect the “habitual residence” of the child.


Family law (Ontario) legislation: Hague convention.
   Upon the parents’ separation, special rules apply to determine the child’s “habitual residence.”  If one parent unilaterally removes (or withholds) the minor to (or in) another country, the Hague Convention may be invoked to restore the status quo and return the child to the place which was (is) the “habitual residence.”  Applications under the Hague Convention are complex and expensive.  In addition, a determination under the Hague Convention does not affect entitlement to custody or the incidents of custody, but deals only with the child’s removal or detention.  The Convention ceases to apply when the child turns sixteen.