In this section we will review the basics with regard to:

• Custody of Children
• Access to Children
• The Best Interests of the Child
• Resolving Custody and Access Dispute

Custody of and Access to Children

Probably the most frightening aspect of any separation is the custody of and access to your children.  It is the uncertainty of not knowing to what extent you will remain involved in your children’s lives, when you will see them and who will be making the important decisions on their behalf.

In fact, Custody and Access are two distinct issues.  Although there is generally some overlap, you do not need to have one to enjoy the other.  

Custody

Custody refers to the power to make the major decisions in your children’s lives; what schools they will attend, their religion and the medical care they receive, to name a few.  

Either parent may apply for custody and it can be joint, giving both parents decision making authority, or sole, granting the decision making authority to one parent.  Non spouses may also apply for custody, but only with permission from the court.  If the parties are capable of deciding on a custody arrangement, then they may do so.  If they are not, a court will designate either or both as custodial parent(s) based on a review of the facts.

Often, custody is a major battleground in family law proceedings where children are involved, but it doesn’t need to be.  Where both parents are capable of a mature commitment to work out arrangements that are in the children’s best interests, joint custody is in order.  However, where there is an inability to communicate, significant differences between the parents or a power imbalance, sole custody is more appropriate.  In many cases, the issue of custody is irrelevant, either because all of the major decisions have been made or the children are old enough that they can make the decisions on their own.

The starting point for any examination of custody is found at Section 20 of the Children’s Law Reform Act, “…the father and mother of a child are equally entitled to custody of the child.”

The sole determining factor in a court’s decision as to custody is the best interests of the children, a concept that is explored in greater detail below.

Access

Access refers to the actual time that the child spends in each parent’s physical care. The amount of access that a parent enjoys is not determined by the custody arrangement in place; non-custodial parents can have as much access as custodial ones.  Access arrangements can be as varied as the individuals involved and, again, depend solely on the best interests of the children.  

Access arrangements are also not set in stone.  An access schedule that may allow limited contact for younger children or at the initial time of separation, can later be expanded, either by agreement of the parents or a Court Order obtained by one parent.  Similarly, where one parent demonstrates an inability to meet their access obligations, that access can be limited by agreement or Order of the Court.

A parent with access has the right to visit and be visited by the children and the right to make inquiries and to be given information as to the health, education and welfare of the children.  

A parent will not be denied access to their children so long as they can demonstrate that continued contact with that parent is in the children’s best interests.  

Best Interests of the Child

Since both custody and access depend on the  “best interests of the child”, it is important to set out what will be considered in determining the child’s best interest.  

Section 24 of the Children’s Law Reform Act refers to specific factors to be used for determining the best interests of the child, and thereby the merits of an application for custody or access.  

The examination of the best interests of the child will include a review of the all the child’s needs and circumstances, including:

    1.    The love, affection and emotional ties between the child and,
          a.    Each person entitled to or claiming custody or access to the child;
          b.    Other members of the child’s family who reside with the child; and
          c.    Person’s involved in the child’s care and upbringing.
    2.    The child’s views and preferences if they can be reasonably ascertained;
    3.    The length of time the child has lived in a stable home environment;
    4.    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;
    5.    Any plans proposed for the child’s care and upbringing;
    6.    The permanence and stability of the family unit with which it is proposed that the child             will live;
    7.    The ability of each person applying for custody of or access to the child to act as a                 parent; and
    8.    The relationship by blood or through adoption between the child and each person who             is a party to the application.

A successful custody or access application is one that demonstrates that the particular parent has been involved as a positive influence in the child’s life in the past, that the parent, despite the issues with the other parent, continues to be a positive influence for the child and, finally, that there is a plan in place for the future stability, care and well being of the child.

Resolving Custody and Access disputes

As parents of the children, you are free to make arrangements as you wish for their care, including custody and access, as long as the child's needs are met.  Where parents can agree, custody of and access to children can be agreed to and set out in a Separation Agreemeent (see "Domestic Contracts"). 

Unfortunately, on the breakdown of a relationship, parents are all too often unable to agree on an appropriate plan for the care of their children.  The result of this failure to agree is usually a Court Application, where it is left in the hands of the Judge to decide the child's best interest.  Whether your are bringing this application or fighting one, this is a very delicate area of law that requires the guidance of an experienced litigator. 

Custody and access is an area of focus at Fitzgerald Family Law.  We can assist you in putting in place your own arrangements or guide you through a hightly contested court proceeding.  Give us a call to discuss your child custody and access issues.

(613)233-7285

Note: The information provided in this website is only intended as a guideline for understanding the basic principles of family law matters generally.  It is not to be taken as legal advice, nor relied upon in advancing or defending a specific family law claim.  Every case is different and in no way is the information provided to be taken as advice specific to your particular circumstance.  If you have questions relating to your matter specifically, please contact Paul Fitzgerald of Fitzgerald Family Law to discuss.