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FAQ: Custody and Access

Q. What does it mean to have custody of or access to the child(ren)?

The Children’s Law Reform Act states that a parent who has custody 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).

Access, on the other hand, is the right of a parent to visit with and be visited by the child(ren). Access is exercised by the parent who does not have custody of the child or with whom the child does not primarily reside. Access includes the right to information concerning the child(ren)’s health, education and welfare. In certain circumstances, a parent’s access 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.

Q. Who is entitled to custody of or access to the child(ren)?

The current family law legislation entitles both parents to custody of the child(ren).

Persons other than parents may apply for access to the child(ren); however, whether such persons will be granted access depends on what is in the best interests of the child(ren). The wishes of the custodial parent will be given significant weight as well.

Q. What are the criteria for determining who should have custody of or access to the child(ren)?

In determining who should have custody of the child(ren) and what access 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 custody/access arrangement?

There are other parenting arrangements outside of the traditional arrangement where one parent has custody of the child(ren) and the other has access. These parenting arrangements include, but are not limited to, joint custody, shared custody and split custody. In a joint custody 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 custody 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 custody 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.

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