Child Custody and Access

What’s access and who has it?

The parent with “custody” has the decision-making rights for the child and is usually the parent with whom the child lives. “Access” is the other end of “custody”. The parent with “access” is the other parent – the one who has time with the child. Some people refer to this as “visitation”.

Each parent starts out with custody of their child until there is an agreement between the parents or a court order giving custody to just one of them.

Usually there’s a defined access schedule set out in a separation agreement or in a court order that sets out the days and times when the access parent has the child. That way everyone is clear about when the child should be with which parent and what the “rules” are about that.

But you don’t actually need to set out the terms for access in writing if the parents get along. These parents may have no written agreement, or may have an agreement using terms such as “generous access” or “reasonable access” to signal their joint intention.

It’s becoming increasingly common to see agreements and orders that don’t actually use the terms “custody” or “access”, but instead set out the rights and obligations of each parent without using a label.

What’s a parenting plan and what should it include?

Parents are wise to consider a parenting plan to set out how the arrangements for the children will be organized.

Apart from the normal, weekly access or visitation, the plan should deal with things such as how, and with whom, birthdays, holidays, summer vacation will be spent. It outlines what happens if the child is sick or needs to miss an access visit, travel out of the country arrangements, and more.

Any parenting plan, or any terms of access in a separation agreement or court order, should be really clear. If parents get along, they don’t tend to worry too much about the strict terms. But if there’s a disagreement or problem everyone, including the police if they’re called, needs to understand just what the parenting plan or agreement says. The agreement or parenting plan needs to be able to show anyone concerned, including the police, when the children are to be with the access parent and when they’re not to be.

For example, having access every other weekend isn’t clear. How do you know what the parties meant about when the “weekend” begins or ends? When must the child be available and when returned? Can the time change each weekend? who says what the time is? Does the weekend include Friday overnight or begin on Saturday? At what time on what day are the children to be returned and to where – their home or drop off at school Monday? Having access for half of the Christmas holidays isn’t clear. What half? Every other day or the first half? What if there are an uneven number of days? When does the Christmas holiday begin – when school lets out on the last day of school or the first day of no school? What if there’s a weekend involved?

So give this very careful attention or you’ll end up in court arguing over what the two sides meant. The more detailed and clear the terms of access in a separation agreement or court order, or in a parenting plan, the better off everyone will be.

Does access change as the child grows?

Of course it does. Do you need bigger shoes as you grow? Yes.

What makes sense for a child who’s still nursing, won’t make sense when the child’s 3years, 10 years, or 15 years old. Children’s schedules, school requirements, activities and interests change. Their friends change. The times they want to spend alone or away from parents change. Every set of access terms must take into consideration that the children will never again be at the age and stage they were when the agreement was prepared, so it should be flexible and allow for change.

Most often parents simply agree to sensible changes in the access arrangements as the children grow and their circumstances, and interests, change. But if they can’t agree, a judge may be required to decide the matter for them.

The issue usually isn’t about whether the terms of access should be changed, but changed to what? The wisest thing for most families is to adopt a flexible and reasonable set of access arrangements keeping in mind that we’re talking about a child seeing their “other’ parent.

Who has access?

Every parent (biological or adoptive) has the right to ask for access. So do people who have been in common law relationships and have treated the other person’s child as one of their own. In many places such as Ontario, other family members or people in the child’s life, have the right to ask for access. Having the right to ask for access, however, doesn’t mean you’ll get it.

Resources for Custody and Access

The Divorce Act
The provisions in the Divorce Act only apply to people who are legally married, or were married but have divorced. It doesn’t cover common law relationships.

Section 16 deals with custody and access and Section 17 deals with variation of orders for custody and access. S. 16 (8) says the court “shall take into consideration the best interests of the child … by reference to the condition, means, needs and other circumstances of the child.” S. 16 (9) says that the court isn’t to “take into consideration the past conduct of any person unless that conduct is relevant to the ability of that person to at as a parent of a child.”

Section 17 deals with varying custody or access orders, and s. 17 (9) says that when varying the order the court “shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child …”

The Children’s Law Reform Act
The provisions of the Children’s Law Reform Act apply to all children and parents in Ontario. This includes parents that are or were married, in a common law relationship, or are biological parents who may never have been in any relationship.

Part III of the Children’s Law Reform Act is called Custody, Access and Guardianship and it covers a lot of ground. This is the “bible” of custody and access legislation and should be understood if you’re going to be in court.

S. 19 (a) says that orders for custody or access “will be determined on the basis of the best interests of the child”, which is defined more in s. 24 (2).

CLEO – Separation and Divorce: Child Custody, Access, and Parenting Plans
This is a full and comprehensive set of FAQs regarding access and related issues.

Asking for a custody or access order
This is a great self help guide if you’re going to be involved in a court proceeding dealing with custody or access.