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Custody and Access FAQ

The following are basic answers to the most common questions asked about custody and access on marriage breakdown.

How does a court decide which parent has custody and which has access?

The Children’s Law Reform Act states that both a father and a mother are equally entitled to custody and that the best interests of the child will dictate who has custody and what are the terms of access (visitation). The act sets out specific criteria which include the emotional ties between the child and the person claiming custody or access, the length of time the child has been in a stable home environment (status quo), the preferences of the child, and the plans for the proposed care and upbringing. Unless relevant to one’s parenting abilities, the past conduct is not relevant in determining custody and access.

What resources are used to help decide custody and access?

The court may order that the children be represented by their own lawyer. The provincial government’s Attorney General’s ministry has a department now called “The Children’s Lawyer”. It was formerly called the Official Guardian. This department has trained lawyers in all cities to represent children in custody and access disputes. In many, but not all cases, it will appoint a lawyer to represent a child. The lawyer would advocate the child’s position to the court though that position is not binding on the court. A social worker may also be part of the process to do a report.

The court may also order there be a psychological assessment of the children and all the parties. A trained psychologist will interview everyone and report to the court with recommendations on the terms of the custody and access. Though very persuasive, this report is not binding upon the court.

What is the difference between sole custody and joint custody?

There are three aspects to custody:
1) Who is the primary care giver and has the primary residence of the child?
2) Who makes decisions about the child?
3) Who has the right to information regarding the child?
In a sole custody situation one parent is all three though the non-custodial parent should be given the right to information. In joint custody situations both parents make decisions regarding the child’s health, education, religion and extra-curricular activities and both have a right to information regarding health and education. Joint custody does not mean that a child spends equal time at each residence. It is very common to have a joint custody arrangement with one parent having the primary residence. Unless the parties agree the court rarely forces by order a joint custody arrangement on the parents though it can and sometimes does so.

What is a normal amount of access?

Present standards would entitle a non-custodial parent to have access every second weekend from Friday after school to Sunday evening (or Monday evening if it is a long weekend), one evening per week, 50% of the Winter, Spring and Summer vacations. Unless there is a very good explanation that is the standard amount of access that will be ordered by the court.

Is access a right or an obligation?

Unfortunately for the custodial parent access is really a right and not an obligation. If the non-custodial parent does not always take the access visits agreed to then there is not much a custodial parent can really do. If the non-custodial parent is continually absent the court might make an order reducing the access.

Can custody and access orders be changed?

If there is a material change in the parties circumstances a court may change the terms of the custody and access arrangements. As a child gets older he or she may want to live with the other parent for a variety of reasons. If there is a move to another city the terms of the access would have to be changed.

Does a child have a say in the custody and access arrangements?

Once a child is old enough, usually at least a mature ten year old, the court may consider the child’s wishes. The child may even have their own court appointed lawyer. The child’s wishes is only one, though important, consideration. It is unfair and hard on a child, however, to put pressure on him or her to decide the custody and access. Parents should not involve their children in the decision making process on marriage breakdown. Also a child should not decide whether to go on an access visit. The custodial parent cannot refuse access simply because the child does not want to go.

What happens if the custodial parent is moving to another city?

It is not automatic that the custodial parent may take the child with him or her if that parent moves to another city. The court generally does allow the move. However there are cases where the court found that the relationship between the noncustodial parent and the child was so strong that a move would not be in the best interest of the child. The reasons for the move must be legitimate and not just a means to reduce access. Having joint custody would not automatically prevent the court from allowing a move.

Can a custodial parent change the name of the child without the consent of the non custodial parent?

Yes, the law allows the custodial parent to do so unless a separation agreement specifically states that such a name change is not allowed without the noncustodial parent’s consent. In a joint custody situation such a change would not be allowed.