Current Canadian Custody and Visitation Laws

The modern Canadian custody and visitation laws are adequate in concern with children’s and adolescents’ best interest. Today it is extremely important to ensure the comfort and best conditions for the children and adolescents that need help.

Child describes the legal and practical relationship between a parent and his or her child. The parent has the right to make decisions for the child, and the duty of a parent is to take care of a child. There can be distinguished different types of custodies- sole custody, joint custody, split custody and shared custody.

–       Sole custody – the child lives solely with one person and solely that one person makes all the decisions regarding the children’s lives. This is the most common in situations where people split up, particularly where there has been a hightened conflict around the separation.

–       Joint custody is where the children primarily live with one parent but the two parents together discuss, co-operate and colaborate upon major decisions regarding the children, whether it’s schooling choices, or extra-curricular activities, or religious issues.

–       Split custody is when one parent has full time custody over some children, and the other parent has full custody over the other children.

–       Last but not least, shared custody is where both parents have both joint legal custody and joint physical custody of their children. That is, both parents are joint decision makers in their children’s lives, and the children live approximately equal amounts of time with each parent. In essence, the children have two homes, one with each parent, according to Child custody (2010).

The population of Canada in early 2010 is 34 million. 2006 Census recorded a 5.4% increase compared with 2001. Despite the large area, about ¾ of the Canadian population lives within 160 km from the border with the United States. A similar proportion also exists in urban areas, concentrated in the Quebec-Windsor corridor (in particular metropolitan areas of Toronto, Hamilton, Montreal and Ottawa-Gatineau ) on the continental plains of British Columbia (Vancouver area from the end of the valley of the Fraser River) and in the hallway of Calgary-Edmonton, Alberta. The 2001 Census recorded 30,007,094 Canadian. According to the Canadian Statistical Service, the country’s population in March 2009 was about 33.5 million people, 8,000,000 of which are francophone. Most population growth is due to immigration. Although the primary economic benefits of immigration brings independent, qualified immigrants, half of all entering the country falls under the program of family reunification (spouses, minor children or parents of new Canadians-sponsors). There are current issues of the Canadian custody and visitation laws that reflect the current situation, according to Grace Johnson (1998).

As a fact, the children’s age can be considered a permanent factor in deciding custody and access. In practice, the child is not able to choose which parent he wants to live with. Consequently, the court decides the child’s wishes and preferences about the parents. Sometimes it is rather challenging to determine the legal custody of adolescents in a divorce. In this case it is different from assigning custody to younger children because of the age difference. Access and visitation has to protect the child’s right to spend time with a person that does not have the child living with him or her, according to Child custody in Canada (2010).

Canada – is a very diverse country with an ethnic point of view. According to the 2001 census in Canada are 34 ethnic groups, consisting of at least 100,000 people. The largest ethnic group calls itself the “Canadians” (39,4%), since the majority of Canadians, especially those whose ancestors arrived in the time of colonization, see themselves as the Canadian ethos. Followed by those who call themselves British (34.4%), French (25.7%), Germans (3,6%), Italians (2.8%), Ukrainians (1,7%), Aboriginals (Indians and Eskimo 1.5%), Chinese (1.4%), Dutch (1.4%), Poles (0.9%), Russian (0.1%).

Canada – is a country of immigrants. The global reputation of Canada as a highly developed, peaceful and free of ethnic discord and conflict of the country where you can raise children in a calm atmosphere, certainly contributes to the growth of immigration into the country. New Canadians, as they are called new immigrants, the vast majority settled in large cities because of the labor market situation and existing contacts. After some time, almost all moved to the suburbs, covering the ring of any North American city. Immigration brings a significant contribution to the economy, ranging from government fees and charges for processing applications to the financial contribution of entering, especially family, from buying real estate and furniture to the future tax revenues. The ethnic composition of the country has undergone tremendous change over the last thirty years, which is caused by fundamental changes in the course of immigration policy. As of 2001, only 39,4% of residents identified themselves as descendants of immigrants from the category of the UK, Ireland and France. Anyone wishing to immigrate to Canada have open access to the conditions of entry and the requirements for potential immigrants, published on the official website of the Ministry of Citizenship and Immigration.

The main directions of population movements within Canada for many years are the exodus of young people from rural areas and small towns to large cities, as well as the mass exodus of skilled labor (engineers, nurses, designers, etc.) and university graduates to work in the United States. Toronto certainly be the most powerful magnet migration within the Canada to the east of the country. Due to the rapid growth of oil and gas industry and construction in Alberta and British Columbia, there is a strong tendency for the outflow of young mobile population in Central Canada, from the prairies and the Atlantic provinces in western Canada. Also continuing exodus from Quebec to other provinces of the English-speaking population, weary from years of separatist sentiment and unwilling, in the words of departing, to feel second-class citizens.  Over the past decade had changed the ethnic composition of Canada’s largest cities – Toronto, Montreal and Vancouver in the direction of increasing the weight of the population from the Middle East, China, India, Latin America and other regions of the world.

As a fact, according to the modern laws, parents are responsible for their children. When a family lives together, both parents share responsibility for the upbringing, education and daily needs of their children, regardless of whether the parents are in a formal marriage. Upon the termination of marriage, spouses should address the issues of accommodation, meals, meet the everyday needs of their children. More than likely, your children need love and support, even if their parents are living separately. Parents are responsible for ensuring the safety of their children. Except in cases where one spouse has resorted to physical violence or intimidation, there should be made every effort to jointly address issues of child care after termination of marriage, according to Canadian Child Custody Laws (2010).

If parents agree with each other, they can consolidate their understanding in terms of parental care (parenting plan), which can determine when each parent spends time in children, and who make important decisions relating to children and their future. Plan of parental care may also be an informal arrangement between the parents, part of the agreement on cessation of marriage or court decision. At the same time, the performance of informal arrangements between parents difficult to enforce in a legal manner.

Guardianship: Children must live with a parent, if an agreement on cessation of marriage or court decision gives a parent the right to custody of your children. If an agreement or court decision does not contain other conditions, a parent is responsible for making decisions about child care, their education, including religious, and their financial support.

Joint custody: The case of joint custody, parents have equal rights on important decisions concerning the care of children. Children may spend equal time with each parent, or live and spend more time with one parent. In order for joint custody to be effective, parents should maintain communication with each other and cooperate in making decisions concerning children.

Access to the children: If you do not belong to child custody, and unless the court decided that the meeting with you against the interests of children, you are entitled to spend time with their children. Terms of visits can be made in writing in terms of joint custody, termination of contract of marriage, or court decision. You can sign an informal agreement on conditions for access to children, however, it is difficult to ensure compliance with the legal order, according to Child Access (2005).

A parent has the right to receive information on health, education, and general condition of your children. A parents has no right to take part in addressing these issues, if he does not own the right to joint custody, and if an agreement on termination of marriage or court decision limits his participation in such decisions. The Court may deny the access to children, if there is a fear that you harm them or a parent with custody, or fear that you do not return children to parents with the right care.

Controlled access to the children: If there are concerns about the safety of children and (one of) the parents, visiting children must be supervised – by agreement between the parents or by court order. This means that the third party must be present when you visit your children. Sometimes parents can agree on the presence of other (girlfriend) or relative (cousin) during the visits. Parents can also hire an observer – for example, a social worker – to be present during the visits. In many localities there are Canadian government-funded centers of monitored visits with the staff of professionals and volunteers. By arrangement with the Center for monitored visits, parents can visit the center for visits under the supervision or leave, and then take away, children for monitored visits, according to Child custody in Canada (2010).

Adopting children from abroad can be a long process, since this procedure is designed, first and foremost, to protect children’s rights. Canadian law allows to adopt a child from another country, if you are a citizen or permanent resident of Canada. To bring your adoptive child to Canada, you have to perform his sponsor for immigration. You can begin the process of sponsorship, either immediately you decide to adopt a child, or you can wait until then, until you find a child and already will begin the process of adoption. Approximately 2,000 foreign children are adopted by Canadian citizens and permanent residents of Canada every year. These children receive a high priority in the immigration process. There are two procedures that you should go if you want to adopt a child from another country: the adoption process and the process of family sponsorship.

Adoption procedure. Adoptive parents have a responsibility to the provinces of Canada. You will need to undergo instruction at home, usually in his province, before the Ministry of Citizenship and Immigration Canada will take your application for sponsorship. You will need to comply with all laws of adoption of the country of origin of your child and all the laws of your province. Make sure you are familiar with all legal requirements at the beginning of the adoption process. As a foster parent of the child from another country, you must apply as a sponsor of the child for permanent residence in Canada. Immediately after the child arrives in Canada for permanent resident status you must file a document for citizenship on behalf of their child. CIC will ask for a letter of permission from your province, indicating that the province gives consent to the adoption. An immigrant visa will be issued only after the immigration authorities of the country of origin of the child will receive a letter from your province.

To bring an adopted child or a child, preparing for adoption in Canada without the prior permission of the area or territory – is a great offense in certain areas or territories of Canada. In parallel, you will need to go through the process of international adoption and immigration process.

For more information on international adoption, it is useful to visit the official website of CIC. Responsibility for adoption and child protection

International adoption can be daunting at first. Its complexity comes from the various legislations involved in this process: the laws of social security, immigration laws and, last but not least, the laws of the country’s child. CIC is responsible for the immigration process, which allows the child to whom you have adopted or intend to adopt, to come to Canada.

Although the process that leads to the issue of immigrant visas in cases of international adoption is a high priority for CIC, adoptive parents may face delays that could be perceived as a “bureaucracy.” Existing local and international procedures, however, were established to ensure the safety and welfare of children.

Federal Department of Human Resources Development Canada (HRSDC) has a division, “Child, Family and Community” (CFCD), programs and actions which are designed to support families and communities, helping them to optimal development. CFCD coordination problems and disseminate information on international adoptions among the provinces and territories, other federal departments, international agencies and nongovernmental organizations, and acts as a centralized federal authority under the Hague Convention on Intercountry Adoption.

Foreign laws. Laws regarding adoption by foreigners differ from one country to another. Responsibility of the immigration officer is to ensure that adoption is legal and is issued in accordance with the laws of the country of origin of the child. If the adoption has already occurred, the responsibility lies with the sponsor to provide the necessary documentation confirming this fact. Adoption, legally registered in a foreign country will be automatically recognized in Canada, except Quebec, where such recognition is granted Quebec court after baby’s arrival into the country.

Not all countries allow adoptions by foreigners. Some allow only custody, while others forbid any international adoption. Potential sponsors should consult with local adoption or the appropriate foreign embassy in Canada before you apply for sponsorship in order to determine whether they are allowed to adopt, according to Canadian Child-Custody Information (2011).

The Hague Convention on Intercountry Adoption. In May of 1993, 66 countries, including Canada, reached an agreement on the Hague Convention on Protection of Children and Cooperation with respect to international adoptions. The Convention seeks to establish a joint framework between the countries of origin of children needing adoption and host countries, these children, to ensure that the vital interests of the child are met. The purpose of the Convention is to prevent abuses such as abduction or sale, or sale or any other impermissible use of children for financial purposes. The Convention sets minimum international standards and procedures for adoptions that occur between the two countries signed the Convention.

The Hague Convention applies only if the child is to be adopted, lives in a country which has ratified this Convention, and when the prospective adoptive parents live in the province or territory of Canada, which also ratified the Convention. The central government province or territory determines the suitability of conditions for the Convention to a particular case.

Sponsorship of children adopted by Canadian law. People are entitled to sponsor a foster child or children, being prepared for adoption in Canada must be Canadian citizens or permanent residents aged 18 or older and reside permanently in Canada. Other criteria are based on the criteria of the Sponsor’s class family immigration.

There are two types of adoptions:

Children of intercountry adoption from outside of Canada. Children may be sponsored by the Family class immigration, if they are younger than 22 years at the time of application for sponsorship and if they were adopted outside Canada in accordance with the laws of another country. The original parent-child relationship must be created as a result of the adoption.

Children adopted in Canada. The child may also be sponsored as a prospective adoptive child to Canada if he or she is under 18 years old at the time of filing an application for sponsorship and if: adoption was not originally intended for the child’s permanent resident status; the child was taken to a country where he resides for the purposes of adoption, and it is legally available for adoption.

Adoption and immigration: the main steps

1. Home Schooling. Essential component of the adoption process. Its goal is to assess the ability of applicants to be a parent an adopted child. This process may include recommendations, medical records and other personal information, and is usually done by a licensed social worker from the province in which the applicant resides.

2. Sponsorship class family-based immigration. Once the Home schooling is completed, the adoptive parents begin the process of immigration Agreement form of sponsorship available on the official website of CIC. Obligations – is a written confirmation of sponsors that they are willing to provide the necessary care and support to the child, whom they wish to adopt or already have adopted. Agreement shall remain in force for 10 years or until such time until the child reaches 25 years of age – whichever occurs sooner.

3. Fees. This is a fee for sponsorship to cover the costs of processing the application and visa sponsor. Detailed instructions and the fees can be found on the official website of CIC.

4. Exit. The child must meet a set of immigration requirements to his immigrant visa has been confirmed.

Application for permanent residence, sent to CPC must be filled out on behalf of the child. Sponsors may fill out an application on their own and send it to the Visa Section, or they can send a form of guardian of a child who fill out and send it to the Visa Section.

The child must also undergo a medical examination. Medical documents must pass from designated doctors, certified by the Canadian side. Medical examination should be done as early as possible in the process, and in any case, before adoption. Results of medical examination may influence the decision to continue the adoption of foster parents, especially in the case of complex or difficult medical history. If the child is from a medical point of view, unacceptable in Canada, then he or she is usually denied of a visa.

Before you bring a child in Canada, the adoptive parents must wait for notification that the child’s immigrant visa is confirmed. This will avoid unnecessary delays and costs. Adoption terminates the legal relationship of the child with his biological parents. This means that the child can not later sponsor these relatives for entry into Canada. Sponsorship of children under the guardianship is not currently possible under the law of immigration, because the guardianship does not break the link between the child and his biological parents. As the requirements for international adoption are subject to the laws of the provinces and territories of Canada, it is urged to contact first with the province or territory where an adopted child will reside for information, especially concerning the requirements of distance learning.

All in all, it can be said that the custody laws are adequate to protect the children’s and adolescents’ rights. Moreover, the courts focus on the child’s best interest, taking into consideration his psychological development and then ensure custody and visitation accordingly. As a rule, younger children are not able to present themselves, that is why the courts will consider all aspects for them and decide their future. And elder children are able to present themselves, and they can explain their vision and wishes in front of the judge. Consequently, it can be said that the laws regarding to the Canadian custody and visitation are adequate in concern with children’s and adolescents’ best interest.