One of the foremost concerns when parties separate is the children. The law on custody and access of children in Canada is premised on the idea that the overriding consideration is the best interests of the children. The challenge for courts is to determine what parenting arrangement will be in the best interests of the children in a particular case, and the challenge for parties is to reach an agreement they both believe is best for their children.

Custody refers to the rights and responsibilities of a parent to make major decisions for his or her child, such as those decisions relating to education, religion and non-emergency health care. While “sole custody” is commonly misunderstood to mean the child will reside only with one parent, it actually means that only one parent will make all major decisions on behalf of a child. Joint custody means that both parents make major decisions for the child jointly. The residency schedule under a joint custody arrangement can vary from equal shared time (50/50 with both parents), to primary residence with one parent (the majority of the time) and fixed days and holidays with the other parent (i.e. Tuesday overnight and every other weekend). Joint custody can also involve dividing decision making into realms over which each parent has final decision-making authority. For example, one parent might be responsible for medical decisions while the other parent would take responsibility for decisions around education.

Access refers to the time during which a non-custodial parent has the child in his or her care. It includes the right to make inquiries about a child and to be given information about the child’s health, education and welfare. An access parent can also make day-to-day decisions about the child when the child is in his or her care. Access can be unsupervised, supervised or withdrawn altogether if there are serious concerns about a parent’s ability to protect a child from harm.

Custody and access provisions are found in both the Federal Divorce Act, R.S.C. 1985, c. 3 (section 16) and the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (sections 20-27). The comprehensive provisions in the Divorce Act apply if the parents are married and seeking a divorce. The comprehensive provisions in the Children’s Law Reform Act apply if the parents are not married or are not seeking a divorce.

A “best interests of the child” test is applied under both the Divorce Act and the Children’s Law Reform Act. The test may involve a consideration of:

• the love, affection and emotional ties between the child and,

  • each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

  • other members of the child’s family who reside with the child, and

  • persons involved in the child’s care and upbringing;

• the child’s views and preferences, if they can reasonably be ascertained;

• the length of time the child has lived in a stable home environment;

• 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;

• the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

• the permanence and stability of the family unit with which it is proposed that the child will live;

• the ability of each person applying for custody of or access to the child to act as a parent; and

• any familial relationship between the child and each person who is a party to the application.

The focus is on achieving what is best for the children, not what is best for the parents.

We are frequently asked if one parent’s conduct disentitles that parent to custody or access. A parent’s conduct is only relevant to custody and access if it impacts the child or the parent’s ability to care for the child. The conduct needs to be considered in light of the relevant circumstances. One parent’s decision to end or leave the relationship is not relevant so long as he or she continues to care for and prioritize the needs of the child.

Mobility:

Mobility refers to one parent’s request to relocate with a child away from a parent who has custody or access rights. Mobility applications are also decided based on the best interests of the child, which may include a consideration of:

• the existing custody arrangement and relationship between the child and the custodial parent;

• the existing access arrangement and the relationship between the child and the access parent;

• the desirability of maximizing contact between the child and both parents;

• the views of the child, depending on the child’s age;

• the custodial parent’s reason for moving if it is relevant to the parent’s ability to meet the child’s needs;

• the disruption to the child of a change in custody;

• the disruption to the child consequent on removal from family, schools, and community; and

• the custodial parent’s views.

At Ambrosino Law Group, we have over 20 years’ experience resolving difficult custody and access disputes through the court system, as well as through alternative dispute resolution processes. Let us help you understand your parental rights and responsibilities and how you can achieve your parenting goals. Contact us today for a consultation.