Manitoba Justice
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Family Justice
Family Law
Family Law in Manitoba - 2005 Edition
Chapter 5
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Last revised: Spring 2005
- Court Orders of Custody
- Parenting Agreements
- Mediation
- "For the Sake of the Children" Parent Information Program
CUSTODY
The legal term custody refers to all the rights and duties related to the care of a child. This includes the right to make all important decisions about the child’s care and upbringing (legal custody), and the right to the actual everyday physical care and control of the child (physical custody).
Under The Family Maintenance Act, both parents of a child have equal rights to the custody and control of their child, if they have lived together after the child’s birth and no court order has set out a different arrangement. It does not matter if they are married or unmarried. A written agreement cannot change this custody right. However, if the parents never lived together after the child’s birth, the parent with whom the child lives is deemed to have sole custody and control.
At present, both The Family Maintenance Act and the Divorce Act use the terms custody and access. The federal government is expected to reintroduce a bill (proposed new legislation) to change the federal Divorce Act. This bill is expected to replace custody and access orders with parenting orders that set out what parenting time and responsibilities each parent will have. Information on the status of federal bills is available on the Internet at
http://www.parl.gc.ca/LEGISINFO/
Court Orders of Custody
When parents separate and can’t agree on parenting arrangements, either parent can ask the court to make the decision for them. The court must make custody decisions based on what arrangements are in the best interests of the child. This involves an evaluation of what will promote the child’s physical, emotional, intellectual and moral well-being. The court encourages parents to resolve the dispute through mediation. The court has the power to refer parents to a mediator at Family Conciliation, a branch of Manitoba Family Services and Housing, that works closely with the court. If mediation is inappropriate or mediation is unsuccessful, the court will make a decision based on the best interests of the child.
The court will take into account a number of factors, such as:
- care arrangements before the separation (Ex: Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extra-curricular activities? Who dealt with the child’s school and teachers?)
- the parent-child relationship and bonding
- parenting ability
- any family violence or other conduct that relates to parenting ability
- the parents’ mental, physical and emotional health
- the parents’ and the child’s schedules
- support systems (Ex: assistance and involvement from grandparents and other close relatives)
- sibling issues (Ex: brothers and sisters should generally remain together, but under some circumstances, it may be necessary to consider separating them)
- the child’s special needs (Ex: the child has a serious medical condition and one parent is better able to handle the care required)
The court will also consider the child’s wishes. There is no magic age for when a child has the right to decide where he or she is going to live. The court gives more weight to the child’s wishes as the child matures. An older teenager’s wishes will often be decisive.
Children shouldn’t be put in the position of having to choose one parent over the other because it may be psychologically damaging. Children should never be placed in the middle of their parents’ dispute. As a general rule, parents should never involve their children directly in the court proceeding by getting them to provide or sign affidavits or testify. This is very destructive and almost always unnecessary. If the court needs to know the children’s wishes, a parenting expert can be called on to interview the children and report to the court. This report would be part of a complete assessment of parenting arrangements for the family. See the section on assessments later in this chapter.
The judge will also look at each parent’s willingness to support the other parent’s involvement with the child. For example, if one parent talks badly about the other parent to the children or in the children’s presence and prevents the other parent from seeing the children without good reason, the judge may decide that parent should not have custody.
The law encourages the continuation of a healthy relationship between both parents and their children after separation. Unless there is a risk to the children, generally it is best for children to have contact with both parents.
A court order of custody or sole custody to a parent means that parent has both legal and physical custody of the child. He or she makes the important decisions about the child’s education, extracurricular activities, health and religion, and the child lives most or all of the time with that parent.
When the court makes a sole custody order, it will usually give the other parent access, the right to have contact with the child. What an order of access or reasonable access means depends on the arrangements the parents make between themselves. For example, it may mean that the child lives with the other parent two or three days a week, or that the child sees the other parent once a week.
Sometimes, especially when the parents have difficulty co-operating with one another, the court may order specified access. This kind of order will lay out exactly when and under what conditions the other parent can have contact with the child. Where there is tension and conflict between the parents or safety concerns, the court may order that a third party be involved to facilitate the access (Ex: by helping with the pick-ups and drop-offs). If there are real concerns about the behaviour of a parent during access, the court can impose conditions. For example, if a parent drinks and drives with their children as passengers, those children are put at risk. If a parent has reason to believe the other parent is endangering the children this way, he or she can ask the court to prohibit that parent from consuming alcohol before or during any period of access, or prohibit that parent from driving with the children. Where the court is concerned about the child’s safety in the care of that parent, the court may order that another person supervise the access. Specialized services are available in Winnipeg and certain regional centres to assist with the pick-up and drop-off of children for access or access supervision. For more information, contact:
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Winnipeg Children’s Access Agency
Phone: 284-4170 -
Brandon Access Exchange Service
Phone: 729-8115 -
Thompson Access Exchange Centre
Phone: 778-1206 -
Interlake Eastman Visitation Service (Selkirk)
Phone: 1-866-886-6153
Parents who do not have custody (non-custodial parents) have rights to information about the child. The federal Divorce Act gives a parent with an access order the right to ask for and be given information as to the health, education and welfare of a child, unless a court orders otherwise.
The Family Maintenance Act says the non-custodial parent has the same right as the
custodial parent to receive school, medical, psychological, dental and other reports about the child, unless a court orders otherwise. The provincial legislation makes it clear that this is a right to information only. It is not a right to be consulted about or participate in decision-making about the child.
The court often orders that the parents have joint custody, with one parent having primary physical care and control, and the other parent having physical care and control as the parties may agree or at specified times. This kind of order means that both parents have legal custody of the child — joint decision-making power- but one parent looks after the child most of the time and makes the everyday decisions about the child’s care. Some orders don’t use the word custody at all but specify the times the child will spend with each parent. With such orders, both parents would continue to have joint custody according to The Family Maintenance Act.
Sometimes the court will state in the order that the parties must consult with each other on all major decisions respecting the child, but that one parent has the right to make the final decision if they can’t agree. The court is more likely to make a joint custody order where the parents agree on it and appear to be able to co-operate with one another for the benefit of the child.
The court can order that the parents not only have joint legal custody but also joint physical custody — that is, the child will live with each parent more or less equally. The court is very unlikely to make this kind of order where one party is opposed to it. Shared custody requires parents to be able to effectively communicate and co-operate with one another.
Where parents can’t agree on parenting arrangements, the court may order that an independent expert evaluator investigate and provide an assessment report to the court. The person who does the assessment is a family relations specialist employed or retained by Family Conciliation, unless the parents agree to a different person or agency. The parents do not pay for the assessment if it is prepared by Family Conciliation. Parents cannot be forced to participate in the assessment, but a judge may look negatively on a parent’s refusal to co-operate in an assessment.
The evaluator interviews and observes the parents and the children and may also speak to extended family members (Ex: grandparents) and others, such as the child’s teachers. The evaluator writes a report with recommendations and gives it to the court and the parents. If the parents still don’t agree on the parenting arrangements and there is a trial, each of them has the right to ask that the evaluator come to the trial and to ask the evaluator questions (cross-examine) about the report.
A parent does not have the right to have an assessment prepared by Family Conciliation. The court will order it only if the court thinks it is necessary to resolve the dispute. Parents can hire a private practitioner at their own expense, but a private assessment should have the agreement, co-operation and participation of both parents.
When parents have joint custody (under a court order or not) neither parent has the right to move the child without the other parent’s consent, unless a court order provides otherwise. Where the court has ordered specified access, the custodial parent should not move the child without the non-custodial parent’s consent. It is very important to consult a lawyer in these situations well before the move is to take place, as a court order may be necessary. See Chapter 11 on enforcement.
Where One Parent Lives Outside Manitoba
As a general rule, when the child lives in Manitoba, a parent who wants an order of custody or access must apply to a Manitoba court. This is the case even if that parent lives outside Manitoba. In an application under the Divorce Act, a parent may make a claim for custody or access in a court in a province where one of the parents normally lives, even if the child does not live there. However, the court will usually transfer the proceeding to the province where the child normally lives.
Where there is a court order of custody and an important change occurs affecting a child, either parent may ask the court to change (vary) the order. One example of this might be where a teenage child wants to spend more time with a parent than the court order allows, or a custodial parent wants to change the access order because the other parent is not caring for the child adequately during visits. If the parents can’t agree on changing the order, they may choose to attend mediation before asking the court to decide the issue.
Parenting Agreements
Many separating parents prefer to resolve their disputes over parenting arrangements outside of court by reaching parenting agreements. The intent is to keep the stress and disruption of separation at a minimum for the children’s sake.
This approach provides parents with the freedom to make parenting arrangements that best suit their family. For example, they may not want to use the traditional legal terms of custody and access that some people feel are not appropriate to describe a parent-child relationship. Traditional legal language is not required and they may want to have an agreement which recognizes joint responsibility and commitment to care for the child.
Parenting agreements usually cover such matters as where the child is to live, how the parents will share the child’s time and how decisions about the child will be made.
Most agreements will also contain a provision that the parties can amend the agreement if an important change occurs, and that if they can’t agree on the amendment to the agreement, either can apply to the court for an order. Some agreements state that as an alternative, the parties will go to mediation or arbitration to resolve the issue.
Mediation
Lawyers can help parents negotiate an agreement. A mediator, whether a lawyer, a social worker, or other professional, can help parents make their own agreement.
Family Conciliation provides mediation on parenting issues at no cost. Before mediation begins, the parents are interviewed to determine whether mediation is appropriate in their case. Mediation is not considered appropriate, for example, where there has been family violence.
The parents must attend a supportive information program, For the Sake of the Children. Once parents have attended the program and have decided to proceed with mediation, Family Conciliation will assign a mediator. The mediator will meet with the parents separately and together, and sometimes with the children. The mediation is confidential and nothing said in the mediation can later be used in a court custody proceeding.
Family Conciliation also offers a special kind of mediation service, called Comprehensive Co-Mediation, through its Winnipeg office. This allows parents to mediate all issues, including child support, spousal support and division of family property.
If mediation is successful and the parents agree on their arrangements, the mediator puts the agreed parenting arrangements in writing and advises the parents to review it with their lawyers. The lawyers will then put the mediated parenting agreement into a formal agreement, usually as part of a complete separation agreement that settles all issues between the parents, or in a court order, or both.
There are also mediators in private practice. See Chapter 2 for more information about private mediation.
For the Sake of the Children Parent Information Program
The purpose of the Manitoba government’s For the Sake of the Children parent information program is to help parents:
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understand what they are going through both legally and emotionally
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cope with and adjust to separation, so they in turn, can help their children adjust
Professionals who specialize in family conflict resolution present the program. There are two seminars, each about three hours long.
The programs focus on how both parents and children experience separation, the costs of
conflict, the benefits of keeping conflict low, children’s needs at different ages, parenting plans, legal and economic issues, alternatives to court and reorganizing after separation. Videos are used to help discussion on communication with children and the other parent, and new partner issues.
Two different programs are offered in the second seminar. One is designed for parents experiencing lower levels of conflict. This program emphasizes a more direct contact approach to parent communication. The other program is designed for parents experiencing higher conflict and focuses on safe, low- to no-contact approaches to parenting. All participants attend the first seminar. Participants then enroll in either the lower conflict or higher conflict program. A CD-ROM of the first seminar and legal information video can be borrowed from Family Conciliation offices, libraries, court offices and Legal Aid offices in rural and northern Manitoba.
For the Sake of the Children is open to all parents and anyone else who wishes to attend. There is no cost to participants. For more information or to register for a session near you, call between 8:30 a.m. to 4:30 p.m.:
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Winnipeg
Phone: 945-4257
Toll free: 1-800-282-8069 (Ext. 4257)
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Brandon
Phone: 726-6336
Toll free: 1-800-230-1885 -
Dauphin
Phone: 622-2318 -
Flin Flon
Phone: 687-1730 -
The Pas
Phone: 627-8221 -
Thompson
Phone: 677-6497
In Winnipeg, For the Sake of the Children runs several sessions per week days and evenings, as well as occasional Saturday mornings. Parents should be able to attend the first seminar within a week or so of registering. Schedules vary outside Winnipeg.
More information about the services offered by Family Conciliation is available on their website at:
www.gov.mb.ca/fs/childfam/family_conciliation.html.
