Child Custody and Access are areas of family law that pertain to the living arrangements and visitation rights of parents after a separation or divorce. It is quite common for disputes to arise between parents regarding who should have custody over the children, whether custody should be shared, and what access rights that the parent without custody has to the children. For both child custody and access, the court’s overarching objective is to do what is in the best interests of the child, and not necessarily the parents.
Child Custody:
- having custody of a child is not only about having legal authority over them, but is also about being responsible for the child’s care and making important decisions pertaining to education, health and religion.
- determining the most appropriate custody arrangement for a child depends on several factors, such as: the child’s preference; the history of caregiving; the child’s education plan; parental conduct; the child’s financial needs, the child’s religious upbringing, the parents’ respective understanding of the child’s needs; and the general goal of keeping siblings together.
- a court may order sole custody to one parent or a joint custody arrangement (which does not necessarily mean equal parenting or residence) if it deems that doing so would be in the child’s best interests. In general, parents also typically need to agree to a joint custody arrangement before a court would consider granting one.
Access:
- having access to a child is about time that the non-custodial parent is entitled to spend with the child as well as the parent’s right to make inquiries and to be informed regarding the child’s health, education, and welfare. Entitlement to access is determined by several factors which include: whether the parents agree to a timetable and arrangement amongst themselves; the child’s preference; whether the parents get along; the parent’s ability to care for and providing a safe and supportive environment for the child; the parent’s physical and mental health; where the parent lives; any history of parental abuse or misconduct; and cultural considerations.
- if granted, access may come in different forms. For instance, a non-custodial parent may be granted a regular and periodic access (i.e. on weekends or on specific days of the week), flexible access on a schedule that meet’s the child’s needs and works for the parents, or supervised access where the court has concerns regarding the child’s safety or the non-custodial parent’s mental or physical health.
The areas of child custody and access are nuanced and complex areas of family law. It is therefore prudent to obtain legal advice from a lawyer when dealing with such issues either in the context of litigation or otherwise. Contact Kamalie Law for a free consultation.
Frequently asked questions
What is a breach of contract?
A breach of contract happens when one party under the contract fails to fulfill their obligations – either partially, or fully. This means that someone (a person or a corporation) either did something that they were not supposed to do or did not do something that they were supposed to do. Their conduct has shown that they are not honouring the contract.
While this is a broad definition, there are multiple types of breach of contract and multiple ways that a breach of contract can be resolved. While we may naturally think of one party simply failing to pay or someone failing to deliver goods or services, there are multiple different parts of a contract that can be breached, and the remedies may be different in different situations.
What are the remedies for a breach of contract?
There are two main remedies that litigants seek and are awarded in a breach of contract lawsuit.
An award of damages is one of the most well-known remedies. The innocent party may seek all out-of-pocket expenses and unquantified damages (i.e., loss of business, reputational losses, etc.) that it has suffered as a result of the defaulting party. However, the question of what damages may be claimed and awarded is not always met with a simple answer. Although most damages suffered can be claimed, courts will often exclude damage that it considers to be ‘remote’, or which was not a ‘reasonably foreseeable’ consequence of the breach of contract.
Another remedy is called specific performance, which is a court declaration requiring a contracting party to fulfill its contractual obligations. This remedy is typically only granted when courts determine that damages are an inadequate remedy. It must be noted, however, that a declaration for specific performance does not actually force a party to fulfill their contractual obligations. In other words, although a court may award specific performance, the defaulting party may choose to ignore the order and to continue acting in breach of contract. In such situations, the innocent party may proceed to seek damages and may seek an order that the defaulting party is in contempt of court.
How can Kamalie Law assist in contract disputes?
At Kamalie Law, our lawyers have extensive experience in litigating and resolving contract disputes. We have represented both the innocent party that wishes to commence a claim as well as the party who is alleged to be in breach of contract and is forced to defend a claim. In each scenario, our primary objective is to determine our client’s objectives and to formulate a strategy that will achieve that objective in the least time possible.
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