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Frequently Asked Questions on Divorce

Divorce and Children

How Do I Know the Child is Mine?

Paternity testing is the easiest and surest way to determine if the child is yours (paternity). Should the parties not agree to voluntarily do the testing, a court order may be obtained to do the testing.

Pursuant to Section 10 of the Children's Law Reform Act the Court can give leave to obtain blood tests or DNA tests of the persons noted in the order giving leave to submit the results as evidence.

Testing is very simple. Each party must provide photo identification at the testing site or pictures will be taken. Usually each party including the child's mouth is swabbed and a sample obtained. The test results of paternity if proven will come back with a parenting inclusion of 99%.


Can a Father Get Custody?

Under Section 20(1) of the Children's Law Reform Act, the father and mother are equally entitled to the custody of the child.

The old idea of a child of tender years being with the mother is no longer followed.

The test is still "what is in the best interests of the child".

As in all custody applications, it is helpful to have an independent assessment conducted by either the Office of the Children's Lawyer, or a private assessor in order to provide additional information and evidence to a Court and to provide an independent expert opinion as to the proposed parenting plan.


Can a Grandparent Get Custody or Access to a Grandchild?

Section 21 of the Children's Law Reform Act indicates that a parent of a child or any other person may apply to a Court for an order respecting custody or access to a child or determining any aspect of the incident of custody of the child.

Generally, the Courts will listen to a parent when it comes to grandparent access unless all of the following questions are answered in the affirmative:

  1. Does a positive grandparent/grandchild relationship already exist?
  2. Has the parents' decision imperiled the grandparent/grandchild relationship?
  3. Has the parent acted arbitrarily?

There must be some evidence to show that a parents' decision about access is based on considerations other than the best interests of the child.

Evidence of animosity, vindictiveness, hurt feelings, or vengeful motive are examples of some factors that a Court should consider. It can be argued that it is a benefit for the child to have contact with their grandparents and extended family members.


Can I Vary a Custody or Access Order?

Custody and Access orders are never final. Both the Divorce Act and Provincial Legislation authorize a Court to change orders if there is a material change in circumstances. The Courts will have to decide whether it is in the best interests of the child to make the change.

The Applicant must prove two things:

  1. That a material change has occurred.
  2. That as a result of the material change, the prior order no longer reflects the best interests of the child.

The conditions, means, needs and other circumstances of the child occurring since the original order was made will be considered.

In order to constitute a material change in circumstances, the changes must not have been contemplated or foreseeable at the time the original order was made.


What is a Parental Alienation and Parental Alienation Syndrome?

The Divorce Act indicates that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and a Court shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

The fact that one parent discourages access is a relevant consideration in a custody case. If a parent continues to interfere with the access parent's relationship with a child, custody may change.

These deliberate attempts to interfere with access and the relationship with the child can be deemed, parental alienation. Should the parent be successful in alienating the child from the other parent, and the child develops the behaviour of the alienating parent towards the other parent, then the parental alienation syndrome (PAS) has developed.

Changes in custody are made on the basis that persistent conduct demonstrating a lack of understanding for the best interests of the child makes the parent unfit to have custody. It is advisable to have an assessment prepared.


Can a Parent Move a Child Away?

A parent cannot just decide arbitrarily to pack up and move. A Court order is required. unless the moving party has the written consent of the other party to the move.

A leading case indicates that while a custodial parent had a right to determine where a child should live, if the proposed move would materially change the need, or the parent's ability to meet these needs, an access parents who objects to the proposed move may apply to the Court to vary the custody or access order.

Each party must show that there parenting plan is in the best interests of the child.

Four basic issues must be looked at:

  1. While there is no presumption in favour of approving a move, a Court should give great respect to the bonafide wishes of a custodial parent.
  2. That a move would result in a significant reduction in access is not a reason to deny the change.
  3. The parents conduct is only relevant in so far as it affects parenting.
  4. Custodial parents need not prove that his or her reason for wishing to move is necessary. It is sufficient that the move is proposed in good faith and not to frustrate or interfere with access.

The same principles apply under both Provincial Legislation and the Divorce Act.

It is helpful to have an independent assessor to provide more information to submit to a Judge.

The age and maturity of a child will be taken into account regarding the child's wishes.


Am I Responsible to Pay for My Child's Education After Their First Degree?

A bachelors degree no longer assures self sufficiency and as such parental contribution towards a second degree is now more common.

A court will consider that a child should not incur huge student loans if the family could or should contribute. A child who is reasonably pursuing a career for which a family had approved was not limited to one degree, subject to a parents ability to pay.


Who is a Parent?

A biological/adoptive parent is a parent under all statutes. A person may also be deemed a parent if he or she has assumed a parental role.

A person assumes parental status when he or she treats a child as if the child was a child of his or her family or otherwise voluntarily assumes the role of a parent to a child.

A court considers all aspects of the child’s relationship with an adult including financial provisions, social interactions and a role in discipline and education.

A court will consider whether the adult-child relationship was independent of the relationship between the adult and the child’s parent or whether the adult was only being pleasant to the child to maintain his or her relationship with the child’s parent.


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