Custody and access are two distinct parental rights. Check the student’s OSR for court orders and consult your supervisory officer before making any decisions
Under most circumstances parents jointly make decisions regarding the care, control and maintenance of their child. However, if there is a disagreement about which parent has the right to make these decisions as a result of a divorce or separation, or if government officials believe that a parent is unfit to make decisions about their child, then custody and access arrangements may be specified in a separation/divorce agreement or by the court. The court will make its custody decisions on the basis of what it determines to be the “best interests of the child.”
What is Custody?
Custody is the right to make important decisions about how to care for and raise a child, for example:
- The child’s school and educational programs
- The child’s faith
- Where the child will live
- Activities the child will be involved in, such as sports, tutoring, music lessons, clubs
- The child’s legal name
- Health care decisions for the child
Custody is not about which parent the child lives with or how much time a child spends with each parent. For example, even if only one parent has custody, the child might live equal time with each parent. Or, the child might live mainly with one parent, but both parents have custody and share the decision-making.
What are the different types of custody and what do they mean?
Sole custody - If one parent has sole custody, this means he or she can make all of the important decisions about the child, even if the other parent disagrees. Sometimes the parent with sole custody must talk to the other parent before making the decision. Some people assume that if a parent with sole custody dies, the other parent gets custody. This is not always true. A parent with sole custody can choose who will have custody of their child for the first 90 days after their own death. The person they choose, or anyone else, can apply to the court to have custody after that. When one parent has sole custody, the other parent often has access.
Joint custody - Joint custody means that both parents must agree on major decisions that affect their child. One parent cannot decide these things without the agreement of the other. If they disagree, they must find a way to resolve their differences. Joint custody works best when parents share similar ideas about how to raise their child. Courts do not like to order joint custody if parents are unable to make these decisions together. Sometimes parents with joint custody divide up the decision-making. For example, one parent may make medical decisions, while the other makes educational decisions.
Shared Custody – parents agree to joint custody and each parent spends at least 40 per cent of their time with the children.
Split Custody – one parent has custody of one or more children and the other parent has custody of the remaining children. Although unusual, this can occur.
What is Access?
When a child lives mainly with one parent who has sole custody, the child and the other parent usually have the right to spend time together. This is called access. A parent with access also has the right to ask for and be given information about their child’s health, education and well-being from the other parent or places such as schools and hospitals. But for some health information requests, such as hospital records, the parent with sole custody may need to give their written consent first.
Both the federal Divorce Act and the Ontario Children’s Law Reform Act confirm that an access parent has the right to “information” about their child’s education. This leaves much to interpretation and administrators should turn to their school board for guidance. Some boards interpret this to mean the access parent has the right to attend parent-teacher interviews, accompany the child on field trips, attend sports or music events and attend IPRCs. In short, the parent can be involved with the child’s school life up to the point of decision-making. Other boards take a more narrow view of “information” and restrict the access parent to a copy of the report card and a telephone interview between the teacher and the parent.
What are some different types of access?
Reasonable or liberal and/or generous access - If the parents are able to cooperate, the access arrangements can be left open and flexible instead of having a detailed schedule. This is sometimes called “reasonable access” or “liberal and/or generous access”. This allows the parents to informally make arrangements that can easily be changed if the situation changes.
Fixed or specified access – Sometimes the terms of the access include a specific and detailed schedule. This is often called “fixed access” or “specified access”. The terms may cover who has access on holidays, long weekends, children’s birthdays and religious occasions. They may include where access will take place, or specify other conditions.
Supervised access – In some situations, access may need to be supervised by another person. For example, supervised access might be ordered if the parent with access:
- Has a substance abuse problem
- Has abused the child in the past
- Has threatened or tried to take the child away from the other parent
The person who supervises might be a relative, a friend, a social worker, a worker at a supervised access centre or a Children’s Aid worker.
No access – In the most extreme cases, a parent might not have any access to their child. For example, this could happen when serious child neglect or abuse has been proven, or where a child’s safety cannot be protected.
Does child support affect a parent’s right to access?
No. Access and child support are separate issues. A parent cannot be denied access because they have not paid child support. And, a parent might still have to pay child support, even if they do not have access.
Can someone other than the parents get custody and access?
Usually it is the child’s parents who make an agreement or apply to the court for custody or access. But in some cases, other people might be granted custody or access, such as a step-parent, grandparent or other relative. In rare situations, it could be someone outside the family who has a close relationship with the child. As in all custody cases, courts must make these decisions based on what is in the best interest of the child.1
Can I register a student whose parents live in another school district or another province or country?
All students under the age of 16 must reside with a parent or legal guardian. Students under the age of 16 require this responsible adult to act as a contact for the purposes of attendance, discipline, academic progress, and emergency situations.
In a Ministry of Education Memorandum 2012: SB01, the Ministry specified that for purposes of an enrolment audit, the Ministry expects the following criteria to be met in the case of a pupil residing in Ontario with parents residing outside of Ontario:
(1) an Ontario court order transferring custody from the parents to an adult resident within Ontario; or
(2) the following criteria:
(a) the student is a Canadian citizen or permanent resident;
(b) the guardian is in the student’s immediate family;
(c) the guardian is assuming full responsibility for the care and well-being of the student, and the student is residing with the guardian throughout the custody period; and
(d) a written agreement exists that sets out the above, and the respective responsibilities of the parents and the guardian.
Can a 16 or 17-year-old student live on his/her own and make educational decisions without parental permission?
Students who are aged 16 and 17 years old and who wish to remove themselves from the care and control of their parent/guardian should be advised about the implications of such a decision, and referred for support (for example to Justice For Children and Youth) where appropriate. In cases where students decide to withdraw from parental care and control, schools should follow their school board procedure, which may require a written letter from the student to be placed in the student’s OSR.
Should I go to court to support a parent in a custody/access dispute?
Occasionally, one parent or the other may ask a principal to attend court to give evidence on their fitness to parent, or the other spouse’s lack thereof. The administrator should only attend if subpoenaed and should limit his/her answers to factual information about school performance, attendance and/or the contents of the OSR (if they are directed by the Court to release this information) and may also provide factual information about what they have observed personally. However, if asked to provide an opinion based upon observation, the administrator should limit his/her response to objective assessments within his/her experience and expertise. For example, principals are not qualified to diagnose medical health but can say the child appears to be well nourished and able to participate fully in school life. Administrators are not psychologists and so should not be commenting on the child’s mental health but can say the child appears happy and well adjusted. It’s important in court to answer questions in your areas of expertise – school life and education – and to maintain your focus on the factual information in your possession, rather than on opinion evidence, where possible. You will be subject to cross-examination and want to ensure that you come across to the court as objective and credible.
Similarly, a parent sometimes asks a principal to write a letter of support endorsing their parenting that they intend to use in court. This is done to establish their fitness for custody of the children. Administrators should respond by indicating that they cannot provide such a letter, as boards generally do not want their employees to become involved in external processes. This is particularly true in cases where one parent is pitted against another, as taking sides is rarely useful to the school, which ultimately will continue to need to engage both parents. Furthermore, a principal only sees a portion of the child’s life at school. Administrators do not have a complete picture of the parent’s abilities or capacity for effective parenting. This can be a difficult situation to manoeuver, especially if the parent making the request has been a contributor to school life. Further, under Family Law Rules, these letters are entered into evidence and the principal may be cross-examined by the other spouse’s counsel about the contents of the letter. A principal may find him/herself being discredited not only on the letter itself, but also as a professional.
What is the Office of the Children’s Lawyer?
The Office of the Children’s Lawyer (OCL) is an independent law office within Ontario’s Ministry of the Attorney General. It represents the interests of children before the court in custody and access matters, child welfare proceedings, and civil litigation and estate matters. The OCL consists of both lawyers and social workers.
The OCL only becomes involved in children’s cases when authorized to do so by a court order. Involvement in child protection cases is mandatory when ordered. Involvement in custody and access cases is discretionary. The OCL only represents children when directed by a court order. The court may order OCL involvement or either parent may bring a motion/application before the court to request the services of the OCL. Under section 38(3) of the Child and Family Services Act, if a court determines that legal representation is desirable to protect a child’s interests, the court shall direct that legal representation be provided for the child. A party brings a motion/application to request the services of the OCL.
When the OCL visits a school, it may request to view the student’s OSR, meet/interview the student and/or meet/interview the staff and/or principal.
Principals often wonder if they will be provided with a copy of the court order in child protection cases. Section 45(8) of the Child and Family Services Act prohibits the publication of any identifying information about a child, a child’s parents or a member of the child’s family in a child protection case. As a result, in child protection matters, the OCL will not provide a principal with a court order; only a release signed by the parents or CAS where applicable. In custody/access matters, the OCL will provide a principal with a court order and a release signed by the parents or CAS.
The right of the OCL to access the OSR originates from the custody/access and/or child protection court orders. In both orders, the OCL is entitled to “receive copies of all professional reports and all records relating to the child(ren).” In addition, the OCL’s practice is to require a parent or guardian to complete a standard release form. The release is in accordance with the court order and sets out the role of the OCL in its entirety, including its right to access student records. The OCL’s practice is to require the parent to forward to the school a signed release of information and to have the parent telephone the school providing verbal consent. Where a principal does not have a signed release from the parent, he/she should telephone the OCL and request a copy. Where a parent refuses to sign the release, this would violate the court order and the OCL could then bring the matter back to the court in order to compel the parent to cooperate.
The OCL may also rely on court orders to meet and interview students at school. Section 4(a) of the Custody/Access Order and section 3(a) of the Child Protection Order empower the OCL to “make a full, independent enquiry of all the circumstances relating to the best interests of the child.” Some school boards have policies and procedures in place regarding access to students by third- party professionals that may apply. It is recommended administrators review these policies and procedures and consult the appropriate Superintendent for further direction before permitting such interview(s). However, in the absence of such policies and/or direct advice from the Superintendent, the principal stands in locus parentis and has responsibility for the child the OCL wishes to interview. If the OCL comes to the school to interview the child and has parental consent to do so, the interview should proceed, although it should be in a location where the conversation can be confidential but within view. This simply aligns with the principle that no child should be in a closed room with a single adult for the protection of both parties. In the absence of parental consent (including CAS), a principal should not agree to the interview unless or until the board approves it or parental consent can be obtained.?If the student does not wish to meet with the OCL, the OCL is empowered by court order to contact the student. It is not up to the student to determine whether he/she will meet with the OCL. However, the OCL’s protocol is not to compel a reluctant student to speak; the usual response is to reschedule and/or counsel the child.
The OCL does not have the authority to remove a student from school to meet with the student unless the parent grants permission (or the child is 18 or older). It is very rare for the OCL to attempt to remove a student since the purpose of conducting an investigation on school grounds is to obtain the views of the principal/teacher and/or to view the student in a school setting.
As noted above, the OCL is empowered by court order to “make a full, independent inquiry of all the circumstances relating to the best interests of the child.” This includes the right to interview teachers and/or other staff members who may have information relating to the best interests of the child. The OCL’s protocol is to interview the principal first and determine whether it is necessary to interview teachers and/ or other staff members. If the OCL does request to meet with a teacher or educational assistant, it is recommended the employee seek their union’s advice and to discuss whether s/he wishes to participate in the interview and, if so, whether union support will be provided.
Key practical considerations for Principals and Vice-principals related to custody and access
When registering students, if a parent indicates a custody and/or access arrangement, the original court order or other legal document must be provided and a copy made which should then be added to the student’s documentation file in the OSR. It would be unwise for an administrator to simply rely upon one parent’s oral representations about what such a document says.
Should a principal have questions about the access arrangements (i.e. where the order or separation agreement is confusing) s/he should seek clarification from the relevant Superintendent who may in turn involve the board lawyer and if necessary board counsel can engage with parents’ counsel to obtain clarity.
If there is disagreement between the parents about their access arrangements and this could create a problem at the school, the principal should urge the parents to work to find agreement. If agreement is unlikely and, as a result, a conflict at the school could arise, the principal may need to seek advice from the Superintendent or Board legal counsel to ensure that the school is kept safe for all students.
When parents with joint custody disagree about educational decisions affecting their child, administrators should avoid “siding” with one parent and should encourage the parents to reach a joint decision and to communicate this decision to the principal or vice-principal. Where an access parent’s demands on the school or teaching staff seem to be unduly onerous and/or unreasonable in relation to his/her entitlement to education information about their child, administrators should share the board’s practice/policy in this regard and seek direction from the relevant Superintendent who may in turn involve board counsel if necessary.
Where an order specifies restricted or no access, administrators should ensure that processes are in place, including, if necessary, a safety plan for the child(ren) in question, in the event that the parent with restricted/no access arrives at the school. This plan should be shared with office staff, the child’s teacher(s) and anyone else who may be approached by the parent.
Principals and vice-principals dealing with challenging child custody issues should take direction from their Superintendent and/or the board lawyer or seek advice from the OPC to ensure they have a full understanding of their legal responsibilities
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[1] The above information is courtesy of Community Legal Education Ontario (CLEO). For more information, resources and publications visit http://www.cleo.on.ca/