The Children’s Law Reform Act allows a parent of a child, or any other person, to make an application for custody to Court for an order respecting custody of or access to the child, or determining any aspect of the incidents of custody of the child.
The appointment under a will is only effective for 90 days, or if an application for custody or guardianship is brought within the 90 day period. The appointment in the will provides immediate, temporary relief, effective until the Court can make a more permanent appointment.
An affidavit from the person applying for custody must accompany the application, and must set out the person’s plan for the child’s care and upbringing, information respecting the person’s current or previous involvement in any family proceedings or criminal proceeding, and any other information relevant to the “factors to be considered”. In addition, recent amendments require that an applicant who is not the parent must provide the results of a recent police records check and a children’s aid society check.
1. In considering the application, the court is to take into account the best interests of the child including
a. the love, affection and emotional ties between the child and,
b. each person entitled to or claiming custody of or access to the child,
c. other members of the child’s family who reside with the child, and
d. persons involved in the child’s care and upbringing;
e. the child’s views and preferences, if they can reasonably be ascertained;
f. he length of time the child has lived in a stable home environment;
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3. the permanence and stability of the family unit with which it is proposed that the child will live;
4. the ability of each person applying for custody of or access to the child to act as a parent; and
5. the relationship by blood or through an adoption order between the child and each person who is a party to the application.
The Court has extensive statutory authority to order assessments of the needs of the child, and the ability and willingness of the parties to satisfy those needs.
The application for guardianship is less onerous. In considering an application, the Court is to consider all of the circumstances, including the ability of the applicant to manage the property of the child with the merits of the plan proposed by the applicant for the care and management of the property, and the views and preferences of the child, if such views and preferences can be reasonably ascertained. A bond is usually required.
This article is not intended to be relied upon as legal advice but only to give the reader an overview of the law in Ontario. You need to consult your legal representative to determine the best procedure in your particular circumstances.
