Legal Resources

Custody and Access

What is custody?

Custody is the term that has traditionally been used to describe a bundle of rights that separated or divorced parents exercise in the process of raising their children. This includes such things as the right to have a say or make decisions about their education, religious training and health care, and generally control where they go and what they do. Both parents are presumed to be equally entitled to custody both during the relationship and at the beginning of the separation. However, this presumption will be set aside if, over a period of time, one party allows the other to have the child living primarily with them or allows that party to unilaterally make the day to day decisions for the child.

Custody is not an absolute right and our courts always have an over-riding jurisdiction to decide what is in the best interests of a child. The court can award custody to one parent instead of the other or award custody to someone other than a parent, such as grandparents or the Children's Aid Society. As children mature, their opinions about where they should live are also given increasing weight. It is always expensive and extremely stressful for family members involved in a court proceeding for the determination of custody of children. As an alternative, people are increasingly turning to mediation and are developing parental arrangements within their Separation Agreements to constructively share the responsibility of raising their children following a separation.

Joint custody, sole custody, shared custody and split custody are all various terms for different types of parenting arrangements. Parents who can set aside their needs and communicate respectfully and fairly can usually resolve these difficult issues with much less difficulty. However, when communication is difficult and trust and respect are stretched thin, a skilled family law lawyer can be of great assistance helping their client come to a resolution or assist in obtaining Court Orders as necessary.

Sole v. Joint Custody

The term sole custody describes a situation where one parent has the right to make all major decisions for their minor child. Such major decisions include education, religious training, health and living arrangements. Most child care experts and judges agree that sole custody is not ideal, and that children benefit from having both parents involved in raising them.

Joint custody refers to a situation whereby both parents make the major decisions for their minor child together. In the separation agreement or in a divorce proceeding, parents can establish joint custody arrangements to suit the parties involved. However, if there is conflict between parents and they find it difficult to put their disagreements with one another aside when discussing their children, joint custody is difficult to put into practice.

The important point is that "custody" is about making decisions, not about the amount of time children spend living with either parent.

Access and Visitation

"Access" refers to the time that the non-custodial parent has the child in his or her care. Unless the court has concerns regarding a person's parenting ability, the court will generally award the non-custodial parent with as much access or visitation as possible. The non-residential parent is normally entitled to spend time with the child on a regular basis, and has the same right as a custodial parent to make enquiries and receive information about the health, education and welfare of the child. However, if the court does have concerns regarding the person's parenting ability, then "supervised access" may be ordered. In such a case, when the non-custodial parent visits with his or her child, it may occur within a facility where they can be supervised by a social worker or supervision can be done by a friend or family member who is appropriate.

This is an area where parties may wish to incorporate the access terms into a Separation Agreement which can be far more flexible, detailed and custom made as opposed to a Court Order. It may also be of assistance to engage a Parenting Coordinator to assist in setting out access in everyone's best interest.