Children and Divorce – Common Issues

When a marriage draws to an end and results in divorce one of the main issues that can be a source of pain and hardship is figuring out how to deal with your children or how the divorce will affect your children. This article will discuss some common issues that arise with regards to children and divorce.

As noted above there are many concerns about how a divorce will affect the children in the marriage. Often parents look for a way to try and ease the strain on their children that is caused by the divorce. Experts note that divorce is very difficult for children and it will certainly change their world forever. Because of the increased awareness of the effect that divorce and conflict have on children emphasis is put on trying to help families get through this difficult time.

For example, in Alberta it is now mandatory for parents who file for divorce or start proceedings under the Family Law Act, where child support, custody, access, parenting or contact is an issue; parents are to take a seminar called Parenting After Separation. The plaintiff or applicant parent must give the other parent a Notice of Mandatory Seminar in a standard form at the time of the divorce petition or when other court documents starting proceedings are delivered. It must be noted that these seminars are conveniently located so much so that parents can attend a seminar at a location near them. However, since 2015 the seminar is also available online.

It is important to note that upon completion of the Parenting After Separation seminar a certificate of attendance will be provided and this must be filed with the clerk of the court. Until the clerk receives proof of attendance no case can be set down for trial, application heard by a judge or desk divorce applied for. In fact, non-attending parents may have their documents struck out or be refused permission to make submissions at an application or trial.

It must be noted that there exist exceptions with regards to parenting after separation seminars. For example, the program does not apply to parents where the children are all 16 years of age or older. In addition, exceptions exist if an application for interim custody or parenting is being brought where the following circumstances exist:

A restraining order due to domestic violence has been granted
There is an allegation of kidnapping or abducting, or
One parent has unilaterally made a change in the existing custody of a child

A common question asked by parents is whether or not children should be consulted about what will happen after the divorce. The truth of the matter is that this all depends on the age of the children. In families where children are 12 years or older they probably should be consulted about their living arrangements. However, the final decision is to be made by the parents and where issues arise in making such a decision the court will provide the necessary decision.

In many television programs it is portrayed that children may be required to go to court especially when a divorce is contested. However, it is important to note that children do not have to go to court. As a result, they do not have to choose sides and give evidence for one parent against the other. That being said, in some exceptional circumstances a judge may ask to speak to a child if custody is in dispute. If this happens the judge meets with the child in his or her private office and tries to keep the discussion relaxed and informal. In such a rare case the judge basically wants to understand the child’s feelings and wishes about custody and living arrangements. Thereafter, the judge will consider what the child wants, however, the final decision will be based on what is in the best interests of the child considering the whole family situation.

It is important to note that while divorce can happen at any point in a marriage there is a clear definition of what is defined as children in the law. In accordance with the Divorce Act a ‘child of the marriage’ is defined as a child who is:

Under the age of majority, that is 18 or 19 depending on which province, or Older than 18 or 19 years of age but is still in his or her parents care and control because of illness, disability or some other reason such as  pursuing “reasonable education”.

There are many resources available to help parents and children that are going through a divorce. Such resources exist in the form of websites, books at your local library, counselling and mediation services, or courses about communication.

For legal advice and representation with regards to children related issues and divorce seek a consultation for divorce in Ontario .