custody and access
What is custody? What is access?
Custody is the right to make important decisions about the well-being of a child. Custody includes making decisions in relation to the child’s education, religion, health care, general well-being, and activities. Custody is not about which parent the child lives with, or how much time the child spends with each parent.
Access is the time that a parent and child are entitled to spend together. It also includes the rights of a parent who does not have custody to make inquiries and be given information as to the health, education and wellbeing of the child.
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Forms of Custody:
Sole Custody: one parent is granted the right to make the important decisions for the well-being of the parties’ child to the exclusion of the other parent. Although the parent is granted the right to make the important decisions, a parent with sole custody is still expected to facilitate the child’s relationship with the other parent.
Joint Custody: both parents are granted the right to make the important decisions for the well-being of their child and are required to make such decisions together. All decisions must be agreed upon between the parents. Joint custody is typically appropriate when both parents can demonstrate co-operation and appropriate communication, making them capable of discussing important decisions for the well-being of their child in a reasonable way. While communication does not have to be perfect, there has to be some evidence that the parties are able to communicate effectively for the sake of the children.
Parallel Parenting: most often, parallel parenting refers to a custody arrangement whereby each parent is given final decision-making authority over specified areas. For example, one parent has final decision-making authority over education decisions and the other parent has final decision-making authority over medical decisions. There are several ways, however, that this type of parenting arrangement can be organized. It may be that the parents have joint custody but are each given the ability to make the daily decisions for the child while the child is in their care. It may be that each parent is able to make any major decisions for the child while the child is in their care, or the parents may be required to consult each other to attempt to come to a decision with the other parent on major decisions before exercising their final decision-making authority.
Split Custody: when parents have two (or more) children, it is possible that they will agree, or the Court will order, that each parent will have sole custody of one or more of the children.
Forms of Access:
There are several ways to create an access schedule. It is rare that a parent’s access will be restricted entirely. Most often some form of an access schedule will be put in place. The appropriate access schedule to be implemented will depend upon each family’s needs and circumstances.
Equal Time Residence/Shared Parenting: under an equal time-sharing arrangement, the children will spend more than 40% of their time with each parent. The exact schedule will differ based upon the parent’s circumstances and the child’s needs, but will end up with the child spending almost equal time with both parents.
Primary and Secondary Residence: where the child spends most of his or her time at one parent’s residence, that parent is considered the primary parent. The other parent’s residence becomes the child’s secondary residence. Access schedules under this type of arrangement can span anywhere from a few hours, to singular overnights, to entire weekends and overnights during the week.
Reasonable Access Upon Reasonable Notice: in this type of access arrangement there is no set schedule. When available, the access parent will give the primary residential parent notice that he or she seeks to spend time with the child. As long as the request is reasonable and enough notice is given, the primary parent will agree to the access as requested by the access parent.
Supervised Access: where supervised access is agreed upon or ordered by the Court, the parent wanting access can only have access with the child under the supervision of another adult. The supervising adult must be agreed upon by the primary parent or ordered by the Court. In Ontario, there are supervised access centers that can provide a neutral third-party adult to assist with both supervised access and supervised access exchanges.
How is it determined who gets custody of a child?
The Court has the power to create a custody and access order that is tailored to each family. After the breakdown of a relationship, if parents cannot agree on a form of custody, the Court can step in to make a custody order. The Court will base its decision on the best interests of the child. Assessing what is in the child’s best interests requires the Court to weigh:
- the love, affection and emotional ties between the child and each person claiming custody or access;
- the child’s views and preferences if they can be reasonably obtained;
- 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 the child will live; and
- the ability of each person applying for custody of, or access to the child, to act as a parent.
There is no default position for custody or access. Each assessment is focused on each individual child from the child’s point of view, not from the parent’s point of view. In their assessment, the Court will not consider the conduct of one parent towards the other parent, unless it is related to how that parent can take care of the child.
As part of the Court’s assessment, the Court has a desire to maximize contact between the child and both parents because it is generally in a child’s best interest to have a loving relationship with both parents.
At what age can a child choose which parent to live with in Ontario?
There is no set age when a child can choose which parent they live with. As a child gets older, however, and they can clearly articulate their wishes, their preferences will be given more weight by the Court.
A child’s preference for a certain access schedule does not mean that access schedule will automatically be put in place. Whether or not a child’s preferences will decide where they reside depends on their age, intelligence and maturity, their capacity to articulate their choice, and how consistent their wishes are over time. Regardless of a child’s age, their best interests will still be considered by the Court because a child’s wishes may not be in their best interest. The Court will also assess whether the child’s expressed wishes are an accurate reflection of their feelings, or if a parent or family member is influencing the child’s decision.
What is a custody or access assessment?
In determining the best custody and access arrangement for a particular child, the court may order an assessment by a family health professional such as a social worker or psychologist. The assessor will meet with the child on multiple occasions, interview the parents, observe the child with each parent, and speak to other family members or family friends. The assessor will then make a recommendation to the Judge for a custody arrangement and access schedule. As a neutral third party, the assessor’s recommendations are often given significant weight by the Court.
Disclaimer: The information contained on this page is only intended for information purposes and is not intended to be construed as legal advice. Speak to one of our family law lawyers if you have any questions about domestic contracts.
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