Article
by Iain Sneddon |
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Disclaimer: This article
was written in order to provide information only
and should not be relied upon as legal advice. Detailed legal advice should
be obtained which will be appropriate for the specific circumstances of
your matter. (Copyright and Disclosure).
Should you have any questions relating to
a family law matter, please contact
Iain Sneddon by e-mail or
by phone at (519) 672-9330. If corresponding by email, be sure to
include your name, your telephone number, and a brief message. |
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Protecting your Custodial Rights |
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The breakdown of a marriage or common-law relationship is
an emotionally difficult time, particularly when there are children
involved. When you can, you should seek legal advice prior to actually
separating. When you cannot, you should see a lawyer as soon as possible
afterwards. A temporary order may be made shortly after separation which can
dramatically affect the final outcome on the issues of custody and access to
your children. Here are some things you should keep in mind: |
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| 1. |
Under Ontario Law, both
parents are equally entitled to custody of the children. Unless you or
the children are at risk of harm, such as situations where there is
physical abuse, you are not entitled to simply leave the matrimonial
home with the children. You need to have the consent of your spouse or
an order from the Court. If you decide to leave the home with the
children where that risk does not exist and you do not have the consent
of your spouse, the Court may well award your spouse temporary custody
of the children. Temporary custody orders can be very difficult to
overturn at trial. |
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| 2. |
You also should not
change your residence from the family
home before entering into a valid written agreement with your spouse
pertaining to custody and access. If you do so, a Judge will likely find
at a temporary custody hearing that you have acquiesced or consented to
your spouse having custody. |
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| 3. |
Custody and access cases can be very expensive. There
is legal aid available for qualified individuals who cannot afford a
lawyer. For more information, call Legal Aid at 433-8179. |
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| 4. |
Make sure you do not act unreasonably. While you and
your spouse may not get along, children can be profoundly damaged by their
parents arguing. Don’t bad-mouth your spouse to
the children. There are programs available to help you understand the
effects of the breakdown of the parental relationship on the children. For
more information, contact Merrymount Children’s Centre at 434-6848. |
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| 5. |
Wherever it is feasible, you should consider trying to
reach an agreement between yourselves. You should still have some
assistance from a lawyer who can advise you on the legal issues. Mediation
is a cost effective way of coming to an agreement. Mediators are
experienced and trained individuals who can be effective at helping you
and your spouse come to an agreement. There are
private mediators available. You may also obtain more information about
mediation by calling the Family Mediation Centre at 660-3154. |
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| 6. |
In cases where the
children are being abused by your spouse, you should contact the
Children’s Aid Society at 455-9000. In fact, if you know your children
are being abused, you are under a legal obligation to protect them. |
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