Children's Rights & Divorce

Claire’s parents seem to be fighting a lot lately, and aren’t sleeping in the same room anymore. She thinks that her parents might be getting a divorce. 

Claire being 16 understands that this is for the better and in the long run will improve her family dynamics, but her younger sister Eli seems to be having a very hard time with what’s happening. Claire knows that if her parents do get a divorce, that she doesn’t want to have to pick who she stays with, she loves them both equally and wants to spend equal time with them. Eli on the other hand really clings to her mom and being only 6 years old doesn’t want to be separated from her.


http://blogs.psychcentral.com/wellness/2011/07/the-kids-are-alright-what-to-do-when-your-partner-is-ill/

What can Claire and Eli do about their situation, do they get a choice in who they stay with? Will both parents get custody? Who can Claire and Eli talk to if they have issues?

Under the Divorce Act, one or both parents may have custody of the children. See section 16 of the Divorce Act for the provisions of custody orders. Child custody issues are always determined with one primary goal in mind: to do what is in the best interest of the child.

In many divorce cases the children will not have to testify in court, nor will the judge want to speak privately with your children. Instead, the Court normally appoints a social worker or the Court may request to have the children be appointed a lawyer from the Office of the Children’s Lawyer to represent the children’s interests and to present the children’s interests to the judge. This does not happen in all cases, but when it does happen the children’s lawyer will present independent information to the court about the children’s views and preferences relating to the custody issues. Claire and her sister can speak to a social worker or the lawyer appointed to them about their concerns.

Types of Custody

There are four different types of child custody in Canada.

(1) Sole custody: one parent alone has custody of the child which means that the child lives with one parent most of the time. That parent (also referred to as the custodial parent) has the main responsibility for taking care of the child and making decisions about the child. However, the other parent has access to the child and the right to certain important information about the child such as medical information.

(2) Joint custody: both parents share custody of the child. Both parents will continue to share in making all the major decisions concerning the children (about discipline, school, major outings, holidays, etc.). If there is joint custody, many different living arrangements are possible. The children may live with each parent about the same amount of time or live mostly with one parent.

(3) Shared custody: both parents have joint custody of the child and each spends at least 40% of the time with their child. Also, both parents usually share the responsibility for making major decisions affecting the child.

(4) Split custody: When one parent has custody over some of the children while the other parent has custody over the others. Some of the children live with one parent most of the time, while the other children live with the other parent most of the time. This is a rare type of custody. Courts are quite hesitant to award custody in this manner as they don’t want to split up brothers and sister

For more information on the Office of the Children’s lawyer, check out their website: http://www.attorneygeneral.jus.gov.on.ca/english/family/ocl/

Some more online legal information on family law:
http://www.cleo.on.ca/english/pub/onpub/PDF/family/getdiv.pdf
http://www.cleo.on.ca/english/pub/onpub/PDF/family/custody.pdf

This blog scenario was written by Genevieve Pelow, a volunteer on JFCYs PLE team, who is grade 10. The legal content of this blog was written by Lauren Grossman, a first-year law student at the University of Toronto who is volunteering at JFCY through her law school’s Pro Bono Students Canada program. All info was reviewed by a JFCY staff lawyer.

Behind the Scenes with the PLE Team

The YouTube subcommittee of the PLE Team was busy this week filming a video on school expulsions.  The video examines some of the consequences of getting caught selling and buying drugs on school property.

Here is a look behind the scenes at our youth volunteers:

Thanks to everyone involved:

Arif (writer and director)
Bianca (law student writer)
Andrea (JFCY staff lawyer supervisor)
Terence (actor, camera, editing)
Lucas (actor, camera)
Johnny (actor)
Genevieve (actor)
Mindy (actor)
Cydney (actor)
Marie (pizza!)

Stay tuned in early January for the release of this video.

House Party Gone Wrong...

Bianca’s parents are going out of town this weekend and with a bit of convincing from her friend Hailey she decides that she should throw a party Saturday night. Hailey even promises that she can get the alcohol for the party; she assures Bianca that her older sister will make an LCBO trip for them since they are underage.  When Saturday rolls around its finally 9pm and people are starting to show up, Bianca is really excited but a little nervous wondering if people are going to come or not. The doorbell rings, she grabs a beer and runs to the door to let her friends in and start the night off.  Although the party had good intentions, it didn’t turn out so well. Hailey had brought alcohol, keeping to her promise that her older sister would buy it, so there was a lot of underage drinking. One girl at the party had too much to drink and fell down the stairs, hurting herself. The party started to get out of control when some boys moved the party outside the house and damaged the neighbour’s fence playing a game of who could punch through the fence. Due to the noise and people coming in and out of the house, Bianca’s neighbours got very angry and went to check out what was going on. They saw their damaged property and the underage drinking and threatened to phone the police…

 

What could happen to Bianca, Hailey and the rest of their friends at the party if the police show up?

Underage Drinking:

Section 30(8) of the Liquor License Act says that no person under nineteen years of age shall have, consume, attempt to purchase, purchase or otherwise obtain liquor.  Anyone at the party that has consumed alcohol and is under-age can be charged under the Liquor Licence Act and be made to appear in Provincial Offences Court.

If the police find out who supplied the alcohol, Hailey’s sister could be charged under s.30(1) of  the Liquor License Act with knowingly supplying alcohol to minors.

Injury and Property Damage:

Regardless that they were out of town and unaware of the party, Bianca’s parents could face a lawsuit in civil court brought by the girl who was injured on their property as a result of the alcohol available in their home.

Additionally, if the neighbours decide to sue in civil court for the damage done to their property, Bianca’s parents might be held responsible and forced to pay if a court thinks they should have provided more supervision.

Lastly, the youths who were involved in creating the damage could be charged with mischief under the Youth Criminal Justice Act for their actions.

Noise Complaint:

Most municipalities have noise bylaws that give law enforcement the authority to address noise complaints. These bylaws cover activities such as loud parties, yelling, shouting, and playing loud music. According to the Municipal Bylaw of Toronto, s.591-2 says, no person shall make, cause or permit noise or vibration, at any time, which is likely to disturb the quiet, peace, rest, enjoyment, comfort or convenience of the inhabitants of the City. Bianca may face a fine for violating this municipal bylaw. 

If you are have specific legal questions about these topics, please contact Justice for Children and Youth if you are under age 18 and live in Ontario, Canada.  416-90-1633.

This scenario was written by Genevieve Pelow  a JFCY volunteer on the PLE team. The legal info was written by Lauren Grossman, a first-year law student at U of T who is volunteering at JFCY through her law school’s Pro Bono Students Canada program. All info was reviewed by a JFCY staff lawyer.