Is A Court Order Required to Transfer Custody to Non-Parent?
Yes.

Sometimes it is in the best interest of a child to live with a non-parent, such as a grandparent, an aunt, an adult sibling, or a friend.  Parents may agree to the child living with this person.

Parents automatically have custody of their child.  If there is a dispute between them, they may make an agreement about custody (and access) or they can ask the court to make a decision.

Parents do not have the legal authority in Ontario (or in many other jurisdictions) to give custody of their child to a non-parent.  If they cannot care for their child, the government becomes involved.  This means they cannot give someone custody in a written agreement, they need a court order.

Who is a Non-Parent?
A “non-parent” of the child is anyone who is NOT:

• a biological parent
• a parent by adoption
• a person declared by a court to be a parent

What is the Process?
If the necessary documents and information are provided (and all parents agree), a judge may make an order without the parties attending before the judge.  However, even with the parties agreement, a judge must be convinced that the arrangement is in the best interest of the child.

Because of a very disturbing case where a child died in the care of a non-parent who was granted custody by a court order, there are some very firm requirements to provide a criminal and child protection report by the non-parent seeking custody.

To transfer custody on consent (based solely on paperwork), the following main documents will be required:

• an Application or Notice of Change of a Final Order (to make the request)
• Minutes of Settlement, signed by all parents and the person receiving custody (preferably with a lawyer witnessing the signatures)
• an Affidavit in Support of a Claim for Custody & Access (both Part A and B completed)
• an Affidavit of the person accepting custody, setting out their plan for care of the child
• an Affidavit of a parent, explaining why this change in custody is in the child's best interest
• a Vulnerable Person Police Check
• a child protection (children's aid) record's check

If a parent cannot be located, it may be possible to obtain an order dispensing with service on them (and their consent).  If a parent opposes the transfer of custody, that parent needs to be serve and the parties will have to attend before the judge.

Generally, the case should be started by the person seeking custody, but the participation of the parents are of great assistance.

When is Transfer of Custody Not Appropriate?
Judges will NOT transfer custody if it is sought for any of the following reasons:

• to establish the child's residence in a certain area in order for the child:
  • to join a particular sports team
  • to attend a specific school
  • avoid school fees (for example foreign student fees)
• to strengthen the immigration case of the person seeking custody