FAQ: Parenting Order and Parenting Time (formerly known as Custody and Access)
Q. What does it mean to have Parenting Order (custody) of or Parenting Time (access) to the child(ren)?
The Children’s Law Reform Act, the Family Law Act and the Divorce Act state that a parent who has decision making responsibility known as the parenting order (formerly known as custody order) of the child(ren) has the rights and responsibilities of a parent in respect of the child and must exercise those rights and responsibilities in the best interests of the child(ren).
Parenting time (formerly known as access), on the other hand, is the right of a parent to visit with and be visited by the child(ren). Parenting time is exercised by the parent who does not have parenting order or decision making responsibility of the child or with whom the child does not primarily reside. Parenting time includes the right to information concerning the child(ren)’s health, education and welfare. In certain circumstances, a parent’s Parenting time to the child(ren) may be supervised at a designated access centre, by a mutually agreeable third party, or at a Children’s Aid Society. Supervised access is normally a temporary arrangement and only in exceptional circumstances will it be made permanent.
Decision-making responsibility: (Section 2(1), Divorce Act)
Decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of
(c) culture, language, religion and spirituality; and
(d) significant extra-curricular activities; (responsabilités décisionnelles)
Q. Who is entitled to Parenting Order (custody) of or Parenting Time (access) to the child(ren)?
The current family law legislation entitles both parents to custody of the child(ren). The recent changes to the Divorce Act allows for Contact Order which sets out time for child(ren) to spend with important people who are not in a parental role, such as grandparents.
Persons other than parents including a non-spouse, grandparent may apply for Contact Order to the child(ren); however, whether such persons will be granted Contact Order depends on what is in the best interests of the child(ren).
Contact order: (Section 16.5(1), Divorce Act)
16.5 (1) A court of competent jurisdiction may, on application by a person other than a spouse, make an order providing for contact between that person and a child of the marriage.
Q. What are the criteria for determining who should have Parenting Order of or Parenting Time to the child(ren)?
In determining who should have parenting order of the child(ren) and what parenting time should be given to the non-custodial parent, the best interests of the child(ren) is the paramount consideration and this is reinforced by both the Divorce Act and Children’s Law Reform Act. The criteria for determining the best interests of the child(ren) are clearly set out in both the Divorce Act and the Children’s Law Reform Act.
Q. I was a victim of domestic violence. Will this impact how custody and access of the child(ren) is determined?
Violence and abuse must be considered in the determination of custody and access issues, and in fact, the Children’s Law Reform Act requires that, in assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against: his or her spouse; a parent of the child to whom the application for custody or access relates; a member of the person’s household; and any child. Similarly, the Divorce Act requires that the past conduct of a person be taken into consideration if it is relevant to the ability of that person to act as a parent to the child. The Family Law Rules were amended to require a person applying for custody of or access to a child to swear an Affidavit in support of their claim which requires that they disclose any involvement with a child protection agency, a criminal record, and/or abuse.
Q. Are there any other parenting arrangements that can be made other than the traditional Parenting Order/Parenting Time arrangement?
There are other parenting arrangements outside of the traditional arrangement where one parent has parenting order for the child(ren) and the other has access. These parenting arrangements include, but are not limited to, joint parenting, shared parenting and split parenting. In a joint parenting arrangement, the parents are generally joint-decision makers when it comes to the care, residence, health, education, upbringing and wellbeing of the child(ren). Both parents do not necessarily spend equal time with the child(ren), and it may be that one parent has the child(ren) reside with him or her, while the other has visitation. In a shared parenting arrangement, both parents spend equal time or so with the child(ren). They share physical custody of the children and the decision-making role. In a split parenting arrangement, which is rather uncommon, the parents of multiple children may split the custody of the children between them. For example, where there are two (2) children, one parent will have physical custody and decision-making control over one child, and the other parent will have physical custody and decision-making control over the other child.
DISCLAIMER: The foregoing material is not intended to and should not be taken or relied upon as legal advice by the author. It is general information provided by the author to the reader with a cautionary note to seek legal advice with respect to any questions or concerns the reader may have in respect of their own family law issues or the content of this material.