Custody and Access

Custody and Access to the children are primarily governed by the Divorce Act of Canada and by the Children’s Law Reform Act. There are some other acts that apply in some limited circumstances.

By default, both parents have equal right to custody of the child. In the majority of cases a joint custody is awarded by Courts.

 

Joint custody means that no major decision with respect the child(ren) may be made by one parent without other parent’s permission. Major decisions may include: name change, change of religion, choice of school, and non-emergency medical procedure.

 

Sole custody means that the custodial parent is able to make all decisions regarding the child(ren) without the other parent’s approval. It does not mean though that the other parent has no visitation rights.

 

There are some cases in which the Court is of the opinion that the best interests of the child will not be served by granting joint custody to the parents. Those instances may include an abusive parent, a parent who has no interest in the child’s life and upbringing, an absent parent, in cases with high conflict between the parents and inability to put their differences aside for the benefit of the child, etc.

There is no rule as to under which circumstances the Court may award sole custody to one of the parents. Each case is unique in its facts. The only governing underlying principle for the Court is best interests of the child. As a result, in some high conflict cases, the Court appoints the Office of the Children’s Lawyer to act on child’s behalf and to inform the Court of the child’s preferences if the child is old enough to make an informed decision.

 

Custody is never final. Even if the Court made a final decision with respect to custody and/or access, the Order may be changed if the parties’ or the child’s circumstances have changed. The change usually must be material and unforeseeable at the time the initial Order was made.

 

There is such a custody – access arrangement as “shared custody”. In essence, it is a subtype of a joint custody, wherein the child(ren) reside with each parent almost equal amount of time. Usually, the proportion is 40%-60% or 50%-50% of time. This custody arrangement impacts child support amount that one of the parents will have to pay to another.

 

Sometimes the Court may order a supervised access to the child. Those cases are rare and are the expression of the Court’s concern for the best interests of the child(ren) while having access with one or both of the parents.