Family Law - Custody Orders

FAMILY LAW- CUSTODY ORDERS

In our four-part series on family law, we have looked at property division upon dissolution of marriage and support orders. Today, we will look at perhaps the most controversial issue related to divorce-custody.

CUSTODY ORDERS

I have heard about custody. What is it exactly?

Custody means the ability to make decisions for the child. The types of custody are sole custody, joint custody, shared custody and split custody.[1]

Could you please describe the types of Custody?

With sole custody, one parent has the decision-making power. In contrast, both parents have to agree upon decisions when joint custody is awarded but they might not have equal time with a child.[2]?If both parents have equal decision-making power and the child resides with each parent for at least 40% of the time, shared custody exists.[3] In split custody arrangements, each parent has one child live “primarily” with them.[4]

Do Non-Custodial Parents have any Rights?

Yes. If sole custody exists, the non-custodial parent generally has the right to contact the child (“access”).[5] ?Additionally, the non-custodial parent usually has the right to hear about the child’s education, health and general upbringing.[6]

Custody and access are based on the “best interests of the child”.[7]

Does Custody only apply to Biological or Adoptive Parents?

No.?As previously mentioned, the Family Law Act has a broad definition of child.

Thank you for reading and we hope you enjoyed this piece. Next week, we will look at divorce and fraud.

DIVORCE & FRAUD

While someone probably thinks they could trust the spouse that they are divorcing, that is unfortunately not always true. A divorce means that one spouse is parting with potentially significant amounts of money. Therefore, unscrupulous parties hide assets, dispose of assets below the fair market value or they might not make full disclosure. Today, we will look at this type of fraud and find ways to combat it.

What are some common types of Marital-Related Financial Improprieties?

Common types of divorce-related financial improprieties include making large purchases, withdrawing money from bank accounts, creating fake expenses, “lending” money to friends and transferring shares in a corporation to other employees. This is all done with the intention to reduce the NFP.

Does the Family Law Act provide any ways to prevent such Improprieties?

Yes! The courts will not award “…half the difference between the net family properties” if the court feels that it would be “unconscionable”.[8] Some scenarios, where such an award would be unconscionable, include when a spouse “recklessly” incurs debts or intentionally depletes their NFP.[9]

How can one combat such Fraud?

You should retain a lawyer. A person who is divorcing should always hire a lawyer that practises in family law. Even if it is an amicable divorce, as mentioned prior, many of the calculations are tricky to do without specialized software.

Lawyers who practise in family law have “seen it all”. If they or you suspect financial improprieties on the part of your spouse, they can hire a forensic accountant or certified fraud examiner. Forensic accounting refers to any accounting service performed in support of litigation. Certified fraud examiners (CFEs) are accredited individuals who investigate allegations of fraud.

Both CFEs and forensic accountants can examine seeming innocuous trends, like declines in income, to determine if a spouse is hiding money.[10] CFEs have experience interviewing individuals and now what behaviours are often reflective of lying.[11]

This ends our series on Ontario family law. We hope you find it helpful.

Written by Margot Mary Davis & Jennifer Lynch

[1] Ministry of the Attorney General, Asking for a custody or access order (Toronto: Queens Printer for Ontario) at para 2 [Asking for a custody or access order].

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid at para 3.

[6] Ibid at para 3.

[7] Ibid at para 4.

[8] Family Law Act, supra note 2 at s 5(6).

[9] Ibid.

[10] Brian Galbraith, “Forensic Accounting and Divorce” (11 May 2012), online: Ontario Family Law Blog https://www.ontariofamilylawblog.com/2012/05/articles/divorce/forensic-accounting-and-divorce/ [Galbraith].

[11] Remote Investigations during COVID-19”, Financier Worldwide Magazine (November 2020), online: < https://www.financierworldwide.com/remote-investigations-during-covid-19#.X9OKuNhKjIU>.