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.

Can a missed curfew impact custody rights?

Image from: https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiGatUiPeTMdt-JcmxpVOTjat0gqYLDFAhzyoL_cMBPh8DOyVv5YFH1HZ8_YTmMvzQzf8uClpjnqbxpBFaDqki3mbU9Qmsp83wzGFjrGyxokZIQkFtCADa08MUwbt-4wO6SZEpxyZfU_nc/s400/Curfew.jpg

If I miss my curfew, what happens?

Scenario:

Mike is a 14 year-old child living with his mom and dad in Toronto, Ontario. His parents had always given a rough timeline on when he should come home during the weekdays. However, after Mike entered high school, he had more extracurricular activities after school. His parents became more lenient on the time he is allowed to return home. Sometimes it can be as late as 11pm at night.

Recently Mike met new friends with whom he’s spending more and more time at night. One Saturday, Mike didn’t come home until 2:30am in the morning! As his parents start to get anxious as Mike stays later outside, they are worried about his wellbeing.  Recently there was news about the increasing crime rate surrounding the neighbourhood and they finally set some ground rules on when Mike should come home.

Mike’s parents set a new curfew for weekends at 12am and if he needs to stay out later than that, he must call home to explain the reasoning behind his lateness and whether an adult can escort him back safely. They also gave him a warning that in parts of Canada, there were curfew laws. They mentioned to him that although currently where they live, they are unsure whether such laws exist, however it’s still dangerous to come home late in the night.

Aware of his new curfew, Mike didn’t think much of it until the upcoming party at the Scarborough Bluffs next Friday. It was on the other side of town and would be difficult to get home by midnight, unless he left the party really early. On one hand he is sure that if he stayed past curfew, his family will have a fit! Not to mention, his parents had scared him that in parts of Canada, it was illegal to be out late at night.  On the other hand this party was one party he cannot miss.

What does Mike need to know about the law?

LEGAL INFORMATION

Mike’s parents have good reason to be concerned about their fourteen son coming home so late. There is a law that tells them they can’t let their kids stay out in public late at night! The Child and Family Services Act says that parents of children under sixteen cannot permit their children to be without an authorized adult in public places between midnight and six am.  If parents or a designated adult are with the child in the public place, then it is ok, they can be out late.  But it is actually illegal for kids under age 16, like Mike, to be “loitering” in a public place or at a “place of entertainment” without a parent or designated adult between midnight and 6am.

The child will not be arrested and charged for breaching the curfew, but there are possible consequences for his family.  The Child and Family Services Act gives police the power to apprehend a child without a warrant if they find the child without a parent/adult in a public place between 12am and 6am.  Often, the police simply bring the child back to their parents’ home. However, depending on the circumstances and the level of concern for the child's well-being, they do have the power to bring Mike into the care of a Children’s Aid Society, who can then commence child protection proceedings in court. This could affect the parents’ custody rights over Mike. In other words, it can be very serious.

To read more about this law, check out sections 79(5), 79(6) and 79(7) of the Child and Family Services Act.

If you are a young person living in Ontario and have legal questions about your specific situation, please call JFCY at 416.920.1633 or 1.866.999.5329.

This scenario was written by JFCY PLE Team Volunteer Deby Ko, who is now a law student at the University of Windsor.  Legal info by JFCY. 

What is the Office of the Children's Lawyer?

The Office of the Children’s Lawyer

In this post, we look at the Office of the Children’s Lawyer (OCL), which is a law office in the Ministry of the Attorney General that provides legal services to children and youth who are under the age of 18 in Ontario.

While they both represent children and youth on legal issues, JFCY and the OCL are different organizations doing different things.

What is the Office of the Children’s Lawyer?

The physical office where the OCL operates is in downtown Toronto, but there are lawyers and social workers across the province that work with the OCL, and services are available to children and youth anywhere in Ontario.

Lawyers who work for the OCL represent children in many areas of the law including custody and access disputes (when parents separate or get divorced), child protection (when a Children’s Aid Society is involved), and civil litigation (more about this below).

Social workers, who are also called Clinical Investigators at the OCL, may be involved in a case to prepare a report to the court in custody and access disputes and may also help lawyers who are representing children in these cases.

What does the office do?

There are two broad areas in which the OCL works – personal rights and property rights. The OCL does not provide representation or assistance in criminal matters. If you have an issue you think is related to criminal law, contact Justice For Children and Youth for further information and assistance. 

Personal Rights

Personal rights cases include custody and access matters and child protection proceedings. Often, in custody and access cases, parents are able to agree on many issues. There are times, however, where the adults cannot agree and the issues may become complicated. Usually, parents will have the opportunity to have a lawyer help them with their case. If the court thinks it is a necessary for the child or youth to have a lawyer, the court may request that the OCL provide representation to the child or youth. The court will ask the OCL to become involved when the court feels that it needs more information to protect the interests and needs of the child or youth.

One of your parents or the judge can make a referral to the OCL to request that the office becomes involved. If no one has made a request and you feel like you need a lawyer, you can ask one of your parents to ask the court for a referral to the OCL. However, just because the court asks the OCL to assist, it does not mean that the OCL will always become involved. The OCL makes the final decision whether or not to become involved in a custody or access case.

In cases where a Children’s Aid Society (CAS) is involved, the CAS may apply to the court for an order that a child is in need of protection, and remove a child or youth from his or her home. This may happen for many reasons, including abuse and neglect. In most cases, the CAS, and the parent(s) or other adults involved in the case usually have their own lawyers. If the court thinks it is necessary to protect a child’s interests, the court may ask the OCL to provide a lawyer to represent the child or youth. If the court requests the OCL to provide representation in child protection cases, the OCL must do so.

Property Rights

Property rights cases involve civil litigation and estate and trust matters. In Ontario, children and youth (under 18 years of age) cannot sue or be sued in their own name. In a situation in which a child has a right to sue, or is being sued, the child needs someone to act as a Litigation Guardian, who will make decisions for a child in legal proceedings. This would most often come up in personal injury cases, for example if a child was in an accident.

Often, a parent, guardian, or other adult may be appointed by the court as a Litigation Guardian. However, there may be cases where this is not appropriate, or there is no one who is willing and able to act as a Litigation Guardian. If there is no other person available, the court may order that a lawyer from the OCL act as a Litigation Guardian. 

The OCL also represents children and youth estate and trust cases. If a parent, guardian or relative passes away, there are many legal issues that come up for children and youth, including looking at the will, if there is one, to make sure it is valid, and making sure there is adequate support for the child from the estate of the person who has died. 

Where can I get more information?

For more information, check out the Office of the Children’s Lawyer’s website here.

For more information on your rights in cases of separation and divorce, you can check out this pamphlet: Where Do I Stand? A Child's Legal Guide to Separation and Divorce.

This blog post was written by JFCY volunteer Christine Doucet. Christine is a member of the PLE team and YouTube subcommittee, and is a recent graduate of Osgoode Hall Law School. 

Photo Sources: www.business-clipart.com/  and

http://www.kintera.org/AccountTempFiles/account21259/images/justice_scales.jpg

Teen Pregnancy - Part Two (non-medical decisions)

Kiran and her boyfriend Rick are fifteen years old and in grade ten.  They have been dating for several months and spend most of their time together.  They care about each other and trust each other very much.  A few months into their relationship, Kiran and Rick felt ready to begin having a sexually intimate relationship. 

Kiran has a lot of questions about sex and the emotions that she is feeling but she has only discussed her relationship with her peers at school.  She has not told her parents or her doctor about her sexual relationship.  She is afraid that if she tells her parents she will get in trouble.  She also believes that she cannot see a doctor without her parents’ permission and if she does see a doctor, she is afraid they will tell her parents what they have discussed.

Since Kiran has not spoken with a doctor, she is not using any methods of birth control, (such as the birth control pill) other than condoms.  Both Rick and Kiran are shy and embarrassed to buy condoms in the store, so they only use condoms when Rick asks his older brother. 

This month Kiran missed her period and thinks she might be pregnant.  She and her friend go to the pharmacy and purchase a pregnancy test.  When she takes the test she sees a positive result, indicating that she is pregnant.  Kiran is overwhelmed, scared and doesn’t know what to do next.  What are her options?  What are her rights?

There are two parts to Kiran’s decision-making about the pregnancy: medical decisions, and non-medical decisions (like adoption, involving Rick in the pregnancy, and supporting a baby).  Last week’s post covered Kiran’s medical rights and decisions – today’s post is about her non-medical decisions and providing care for a baby.  This post does not include information about receiving financial support, such as government benefits or child support, for a baby.

If Kiran decides to carry her fetus to term, there are a number of decisions to consider.  She will have to think about whether she wants to raise a baby or put the baby up for adoption, what kind of parenting the baby will have, and how the baby will be supported.  While Kiran is pregnant, Rick has no legal rights to be involved with her pregnancy.  After the baby is born, both parents have legal rights regarding the baby.

Adoption: Legal Issues

If Kiran and Rick both do not want to raise the baby, they have the option of putting the baby up for adoption.  In an adoption, another person or people will raise the baby, and take on the legal responsibilities relating to the baby.  In Ontario, both parents must give their consent in order for an adoption to occur – this means that Kiran and Rick must both agree that an adoption is the right decision for them and for the baby.  The baby must be at least one week old before they can make this decision, and since both parents are under 18, a government lawyer (called the Children’s Lawyer) must confirm that each one understands the decision he or she is making and genuinely wants to give consent.

After Rick and Kiran have given their consent for an adoption, they may still change their minds and withdraw consent for up to 21 days following the initial decision.  Sometimes this time can be extended, but only if the baby has not yet been placed for adoption.

When the baby is put up for adoption, the Children’s Aid Society or a licensed private agency will take responsibility for placing the baby and ensuring that its new home and parents will be able to care well for it.  Kiran and Rick will still have input into what kind of home they would like the baby to be placed in, but it is the family that will best meet the needs of the baby that will be chosen as the adoptive parent(s).  The only exception to this is if a relative, like Kiran’s parents, choose to adopt the baby. 

After an adoption, biological parents like Kiran and Rick are normally not involved in the baby’s life and they will not have access to the baby.  Sometimes, adoptive parents will agree to an “openness agreement.” This agreement would allow Kiran and/or Rick to communicate with the adoptive parents, or to share pictures or letters as the child grows up.  However, the details of this agreement would have to be negotiated, and the adoptive parents are the ones who have full legal rights to the child.  Kiran and Rick can also make decisions about whether and how their biological child can contact them in the future as an adult.

Click here for information about adoption in Ontario (government website)

Click here for information about access to adoption records in Ontario (government website)
Adoption law in Ontario is found in the Child and Family Services Act

Custody and Access: Legal Issues

If Kiran decides to raise the baby, she will have to work with Rick to make decisions about “custody” and “access.”  Having custody of a child means having the right to make important decisions about raising the child – things like school, religion, and health care.  One or both parents can have custody, but if a parent does not have custody, he or she may still have access to the child.  This means that both parents get to see the baby and have a relationship with it.  A parent who does not have custody also has the right to access custody-related information about the child, even if he or she doesn’t have the right to make those decisions.

Kiran will have to work with Rick, preferably with the help of a lawyer, to make decisions about custody and access.  There are many possibilities for arranging custody and access, but the most important thing to consider is the best interest of the baby.  For example, this could mean that the baby will live at Kiran’s house and spend the most time with Kiran if she is breast-feeding.  Rick would come to Kiran’s to visit the baby.  This arrangement could change as the baby grew older.  It is very rare that the court will refuse to allow one parent access to his or her child, although it is possible to put conditions on parental access.  As always, the most important thing is the child’s best interest.

When Kiran and Rick have agreed about access and custody, they will sign agreements that contain their decisions.  It is possible for Kiran and Rick to raise the baby without written custody and access agreements, but having these agreements will make sure that everyone knows who is responsible for what and who has what rights, so that arguments will be less likely.  When there is a written agreement, it can be enforced by a court.  In order to change custody and access decisions, the written agreement must also be changed.

If Rick and Kiran cannot agree about custody and access, they may work with a mediator.  A mediator is someone who helps work through disagreements in order to achieve a result that both parents are happy with.  If they are still unable to agree, they may go to court, where a judge will make an order about custody and access.  Both Rick and Kiran will have to follow the judge’s order.  If they want to change the order, they will have to go back to court.

Click here for a pamphlet on custody and access (external link – Your Legal Rights)
Law about custody and access in Ontario is found in the Children's Law Reform Act

Caring for a baby: When would CAS get involved?

Raising a baby can be scary for young parents, since they have a lot of new responsibilities.  While young people can be great parents and take good care of their new baby, sometimes there is concern about whether the baby is getting all the care and support that it needs.  In this situation, a Children’s Aid Society (CAS) or another child welfare organization will become involved with the family.  Since Kiran and Rick are teen parents, CAS may become involved with them and their baby right from the birth.  If Kiran or Rick was ever involved with CAS before, this is more likely to happen.

If CAS is concerned about Kiran and Rick’s baby, they will investigate.  There are certain rules that they must follow in this investigation in order to make a decision about what should happen next.  They may decide that they do not need to be involved with the family, or that the family needs extra support.  They may also decide that the baby is in need of protection, in which case they can remove the baby from Kiran or Rick’s care.  As in the case of custody and access, the most important consideration will be the best interests of the child.

If the baby is removed from its parents, there will be a child protection hearing in court soon after.  At this hearing, the court will make a decision about next steps.  The court will only keep the baby from Kiran and Rick if the court believes the baby is likely to suffer harm and can’t be protected through other means, like putting conditions on the parents'care.

If CAS becomes involved with Kiran and Rick, it is very important for them to have legal support.  Sometimes CAS involvement can lead to a parent's right of custody and access being terminated completely.  Kiran and Rick should each contact a lawyer to help them understand and protect heir parental rights throughout CAS’s involvement.

Click here for a pamphlet on child protection (external link – Your Legal Rights)
Child protection law in Ontario is found in the Child and Family Services Act

Having a baby is an important and life-changing decision, and there are lots of legal issues involved with raising a child as a young person or a person who is not living with the child’s other parent.  If you have specific questions or a personal situation, you should contact a lawyer for legal advice.  If you are a young person in Ontario and you need a lawyer to represent you, you can call Legal Aid Ontario: (416)598-0200, 1-800-668-8258 (outside GTA), or Justice for Children and Youth (416) 920-1633, 1-866-999-5329 (outside GTA)