One of the most significant concerns for parents, if not THE most significant concern, on separation is what will happen with the children. Where will the child live? Who is going to make decisions for the child regarding their education, religion, or medical care? How much time will each partner spend with the children?
These questions are related to custody and access and this post will focus on those issues alone. Child support issues are covered in our previous post here.
There are two different statutes dealing with custody and access in Ontario: the Divorce Act for married spouses, and the Children’s Law Reform Act (“CLRA”) for non-married and married spouses (see our post on married vs. Common law spouses for details on the difference between both types of relationships).
But what is the difference between custody and access? Are they not the same thing?
The person who is responsible for the child on a daily basis and makes daily decisions for the child is said to have custody of the child. This can include decisions on things like: education, religion, and health care. It does NOT automatically mean which parent the child will live with, although generally the person with sole custody is the parent with whom the child resides.
Access on the other hand is the ability to visit and ask for information regarding the child’s health, education, religion and general welfare.
When making a decision regarding custody and access, the courts will consider the “Best interests of the Child”, see s. 24(2) of the CLRA. These include:
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
With these two terms defined and a background on the best interests of the child, we can approach what types of custody and access there are.
S.20(1) of the CLRA provides that both parents have equal entitlement to custody of the children. However this entitlement is limited by s.20(4) of the CLRA. What this means is that if the child resides with one spouse and you decide to move out, you could effectively be giving away custody rights to your child. However you do not lose access rights.
Parenting decisions post separation can be approached in multiple ways. These can include the following:
With this, both parents must agree on major decisions regarding the child. This arrangement requires that both parents co-operate well together to ensure the children are raised well and it works best when both parents have the same values and ideals on how to raise the children. The parents may even choose to divide the decision making responsibilities. For example, one parent may take the responsibility regarding education decisions while the other makes decisions regarding health care.
One parent makes all the important decisions regarding the child. They may have to communicate with the other parent about the decisions, but ultimately the parent with sole custody does not need the consent of the other parent. Usually, if there is sole custody the other parent has access.
Each parent has sole custody of one or more children. This is a rare solution for custody as courts generally do not like to separate siblings. This type of custody is usually provided where the children are older and can express their opinions about which parent they want to live with. With that, if the court determines that this opinion of the child should be given considerable weight, they may then grant split custody.
This term is usually confused with joint custody. This type of custody is actually an access arrangement and does not indicate which parent has legal decision making power, although custody arrangements can be included here (which helps contribute to the confusion). You can have shared custody whether or not you have joint custody. With shared custody, both parents have the child for at least 40% of the time. Essentially, the child’s time is split evenly between the parents. This type of arrangement can also impact how much child support is to be paid (see child support post for more details).
Under the s. 20(5) of the CLRA parents are entitled to visit and be visited by the child. This also includes the right to make inquiries and be given information about the child’s health, education, and welfare.
Types of access include the following.
Reasonable Access – sometimes called liberal or generous
If parents are able to co-operate, then access can be left open and flexible. This type of access is heavily customizable as both parents simply communicate and negotiate access on an on-going basis as they see fit.
Fixed or specified Access
This will include a detailed access schedule with dates and times for access to be exercised. This can cover things such as: holidays, long weekends, birthdays and so on. You can also identify where access will take place and who will pick up and drop off the children.
This may be required if one of the parents demonstrates the following behaviour:
- Substance Abuse;
- Domestic Violence;
- Parental Alienation.
The person supervising the access can be a relative, friend, social worker, worker at a supervised access centre, or even a Children’s Aid worker. This kind of access is generally only done on a temporary basis. If it’s determined that the visits are benefiting the child and the parents respect the terms of the access orders, the access can progress to unsupervised access and can also gradually increase over time.
This is an extreme result where a parent might not be able to access the child at all. An order for no access can result where there is serious neglect of the child, abuse, or if the child’s safety cannot be protected even if supervised.
Other custody and access issues
A parent cannot refuse access to the other parent unless there is a court order to that effect. If a parent does refuse access to another without proper justification, that parent may be found in contempt of court. If that behaviour continues, the parent refusing access could suffer serious ramifications.
Child support and access are two different things. A parent cannot be denied access if support is not paid, and support would likely still need to be paid even if there is no access. It is also possible for a non-parent to be given custody or access, but this must be determined in accordance with the Best Interests of the Child.
Parents have the ability to outline their desires in a Parenting Plan which can be included in a separation agreement. See our post on separation agreements to learn more.