Child Custody and Access
When parties separate, they need to arrange how they will share the parenting of their children. The direction of an experienced lawyer can be helpful in finding lawful and amicable resolutions. This can prevent the unpleasant battles that sometimes arise concerning child custody.
Custody refers to a bundle of rights and responsibilities. A person who is awarded custody is responsible for the child on a daily basis and the person makes the major decisions on behalf of the child. Section 20 (1) of the Children’s Law Reform Act states that “ except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child”.
What is Child Custody?
It is the child’s right to have a relationship with both parents. The Court has the power to order which spouse will have custody of the child or whether it will be shared. The Court tends to look at the situation of each parent equally while making custody decisions. Custody will usually be given to the person asking for it, if there is no dispute. If both parents want custody of the child, the Court will make a custody order according to what it feels is in the best interests of the child.
A person who is awarded custody is responsible for the child on a daily basis and the person makes the major decisions on behalf of the child. Section 20 (1) of the Children’s Law Reform Act states that “ except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child”.
What is Access?
The term access means visiting rights. A person who is granted access has the right to visit with the child.
He or she also has the right to ask for and be given information about the child’s health, education, and well-being from the other parent or places, such as schools.
Because it is a child’s right to have a relationship with both of their parents, a Judge will usually order that the spouse who does not have custody of the children will be able to visit the children. This is called an access order. It may detail where and when visits will take place, their length, and any other conditions or matters that may be decided by written agreement or by Court order.
Access is a right of the child and not a right of the parent.
A parent with custody cannot refuse access to the other parent, unless there is a Court order stating that. If a parent with custody refuses access, he or she can be found in contempt of Court, fined or possibly imprisoned. A repeated refusal of access could be a major factor in the Court ordering that the other parent be given custody of the child.
If the parents are able to co-operate, the access arrangements can be left open and flexible instead of having a detailed schedule. This is sometimes called “reasonable access” or “liberal and generous access”.
In some circumstances, the terms of access include a specific and detailed schedule. This is often called “fixed access” or “specified access”. The terms may cover things like holidays, long weekends, children’s birthdays and religious occasions.
Both the Federal Divorce Act and the provincial Children’s Law Reform Act  provide the Court jurisdiction to determine custody and access matters. Both the Children’s Law Reform Act and the Divorce Act base the merits of the application for custody and access on the best interests of the child.
Rights of an Access Parent
The parent who is not awarded custody still has many important legal rights. Unless the Court says otherwise, an access parent has the right:
- To make inquiries and to be given information as to health, education and welfare of the child, unless the court order says otherwise;
- To oppose the adoption of the child by a third party and to be given notice of an adoption hearing;
- To receive notice of and to be heard in any criminal proceedings against the child;
- To receive notice of a hearing if the child is considered to be neglected under the Child, Youth and Family Enhancement Act;
- To share equally in the child’s estate should he or she die without a will;
- To consent to or to oppose a change in the child’s given name or surname under the Change of Name Act;
- To apply for access.
This is not a complete list.
Contact us for Assistance
Our experience helps us work with worried parents in resolving the often emotional child custody decisions. To discuss your specific child custody and access concerns, please contact us at 1-877-405-5004.