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Enforcing Custody and Access Orders

Law Offices of Nizam Hashmi > Enforcing Custody and Access Orders

If a court order for custody or access is not being obeyed, you can ask the court to enforce the order. The court can try to get parents to respect the custody and access arrangements made for their children. The court may ask both parents to come to court to explain what is happening. If the court is satisfied that access is not occurring without a good reason, the court can fine the custodial parent or even send them to jail. If there are serious problems with custody and access arrangements, the court can change the arrangements. You can also ask the court to enforce custody and access arrangements that are made in a separation agreement.

Q. Our separation agreement says that my wife has custody of our children and I have access. I don’t think my wife is taking good care of the children. I think the kids would be better off living with me. Can our separation agreement be changed?

A. Maybe. You can try to reach a new custody arrangement with your spouse through negotiation, mediation, arbitration or collaborative family law. If that is not possible, you can go to court to ask the court to give you custody of your children. The court can change the custody and access arrangements in a separation agreement if it thinks it would be in the children’s best interest to make a change.

Q. When my spouse and I split up last year, I stayed in the apartment. The children are with me and see their other parent once in a while. Do I have legal custody of my children?

A. Right now, you have what is called de facto custody. This means that, in fact, you have custody of your children and have been making decisions about their care and upbringing as if you had legal custody. Your spouse has accepted this arrangement. It is unlikely that a court would make changes to your situation.

 

However, it will be more difficult for you to enforce your custody rights if you do not have them clearly set out in a court order or agreement, especially if you and your spouse disagree on what the custody arrangements have been.

You will have legal custody when you and your spouse sign a separation agreement that says that you have custody or when a court order says that you do.

Q.  After a lot of arguments and a lot of time in court, I got a court order for custody of our children. Their father has access. His family lives outside of Canada. I am afraid he may take the children and go to his family’s home and I will never see them again. What can I do?

A. If your spouse takes the children away from you, he is committing a serious crime. The police can arrest him and charge him with child abduction. You can do things now that will make it harder for him to leave Canada with the children. There are also international laws to help get children back from many countries. Speak to a lawyer immediately.

If you think the children are about to be taken out of the country, call the police right away.

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* source: attorney-general of Ontario website

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