Custody and Access

Where a couple have children younger than the age of majority, decisions must be made about how the children will be brought up, who they will live with, and how they will be cared for. For many people, disputes about parenting issues like these are the most difficult consequences of the end of a relationship.

Access is a parent's time with his or her child away from the other parent. Often one parent has the child more of the time than the other parent as a result of a court order or an agreement between the parents. "Access," in an order or agreement, usually refers to the parenting time of the parent with the least amount of time with the child.

This chapter will provide a brief overview of access, and discuss the factors that govern awards of access and the types of access that a parent can have to a child.

The chapter will discuss the difference between custody and guardianship and review the legislation which talks about custody. It will look at the factors which go into an order for custody, the different types of custody order, and the people who are entitled to make an application for custody.

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Introduction

The provincial Family Law Act talks about the care of children in terms of guardians and the rights and duties they have in respect of the children in their care. Most of the time a child's parents will be the child's guardians, but other people can be guardians too, including people who have a court order appointing them as guardians and people who are made guardians by a guardian's will.

Guardians raise the children in their care by exercising parental responsibilities in the best interests of the children. Parental responsibilities include deciding where a child goes to school, how a sick child is treated, whether a child is raised in a religion and what sports the child plays after school. All of a child's guardians can exercise all parental responsibilities, or parental responsibilities can be divided between guardians, so that only one or more guardians have the right to make decisions about a particular issue.

The time a guardian has with a child is called parenting time. During parenting time, a guardian is responsible for the care of the child and has decision making authority about day-to-day issues.

People who are not guardians, including parents who are not guardians, do not have parental responsibilities. Their time with a child is contact. A person who is not a guardian does not have decisions-making authority when the child is in her or her care.

The Divorce Act

The Divorce Act calls children "children of the marriage," and s. 2(1) of the act defines a child of the marriage as the child of one or both spouses, providing that the child is under the age of majority at the time, or older but unable to withdraw from the care of his or her parents. The Family Relations Act, at s. 1(1), defines a "child" as a person under the age of nineteen, and s. 87 says that adult children can also be "children" for the purposes of the part of the act which deals with child support. Which act applies?

The Divorce Act is only available to parents who are or used to be married to each other, and the person making the application must have been "habitually resident" in the province in which the appliction is made for at least one year. The Family Relations Act is available to anyone, providing that the child is "habitually resident" in British Columbia at the time the application is made. Does custody include guardianship?

The Divorce Act only deals with custody and access. Under this act, guardianship is a part of having custody, so a person with a Divorce Act order for the custody of a child automatically also has guardianship of the child. The Family Relations Act deals with both custody and guardianship, and orders made pursuant to this act usually provide for custody and guardianship separately. Section 27(4) of the Family Relations Act says that where an order for custody under the Divorce Act has been made, the custodial parent is also the child's guardian. In general, an order for custody under either act is considered to include an order for guardianship unless the order separately provides for guardianship. B. Key Statutory Provisions These are the important sections of the Divorce Act which talk about custody.

s. 2: definitions s. 4: the court's jurisdiction to make custody orders s. 5: the court's jurisdiction to change orders s. 16: custody orders s. 17: variation proceedings

Factors in Custody Awards

There are really two sets of factors that the court will consider in making an order for custody: the factors set out in the legislation and the additional factors which have developed through the courts. As far as the legislation is concerned, s. 16(8) of the Divorce Act provides that:

In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

These sections of the legislation set out the criteria which a court must consider in making an order for custody. Some additional considerations have developed through the common law which the court may consider, including the following general principles:

the parent most likely to be granted sole custody is the person who was the children's primary caregiver during the relationship, assuming that it's necessary to make an order for sole custody for some reason; each parent's character, personality and moral fitness may be considered in determining custody, depending on the circumstances of the case, as long as issues like this are genuinely important and relevant; the court may consider each parent's mental and physical capacity in determining custody, depending on the circumstances of the case; siblings will usually be kept together, although they can be separated in certain circumstances; where the children are in a stable and satisfactory setting, the court will be reluctant to alter the status quo, unless the long-term interests of the children outweigh the benefits of the present stability; and, the court will generally take into account the preferences of children who are ten years old or older, but the court will not be bound to follow the children's wishes. There is no guaranteed way to predict the outcome of a battle for custody. Some people believe that the courts will prefer giving custody of children to their mothers; others believe that the courts have adopted a more modern approach which focuses on parenting rather than gender. Either way, the critical factor in a custody award is the best interests of the child, and the parent who is obviously the primary caregiver will usually be the person with whom it is in the child's best interests to remain.

Types of Custody Order

Custody orders fall into one of two categories: they are either interim orders, made after an action has started but before it has concluded, or they are final orders made following a settlement or a trial. In general, any kind of order that can be made on a final basis can also be made on an interim basis.

Interim Orders

Interim orders are usually intended to provide a rough structure to the legal relationship between the parties and their children which will last until the matter is finally resolved at trial. The result at trial may be the same or different than the situation in the interim.

An application for interim custody is not meant to be a final determination of the issue, and, while the same considerations are applied in making an interim order as they are in a final order, a greater emphasis is placed on the child's immediate and short-term best interests. As a result, the courts will often preserve the existing situation, the status quo, and leave the child with whichever parent he or she is living with, rather than disturb the child and require a change of homes. In other words, if the father left the family home when the parties separated, leaving the children with their mother, the court will likely allow that situation to stand until the final decision is made. It can be difficult to change the children's living circumstances once a stable arrangment has been reached, and both parents should be very careful and consider their options carefully if things come to the point where one parent has to move out of the family home.

Interim orders can be changed. Generally, a parent will apply to vary an interim order where there has been an unexpected change in circumstances which has adversely affected the best interests of the child. Where there has not been such a change in circumstances, the interim order will usually stay as it was.

Sole Custody

A parent with sole custody has the child's primary residence and is responsible for the child on a day-to-day basis.

For some couples, sole custody is ideal. In such cases, one parent, typically the parent who was not the children's primary caregiver during the relationship, has less of a personal interest in being with the children all of the time than the other parent, and is quite content to resign custody. In other cases, the parents live too far apart from each other, or have such a poor relationship with each other, that any other order wouldn't work.

For other couples, sole custody is necessary to protect the children from the conflict between their parents. Where emotions run too high, and the parties find themselves simply incapable of communicating with each other without fighting and exchanging insults, sole custody may be necessary to shield children from their parents' conflict and give them as much stability as possible.

Joint Custody

An order for joint custody gives each parent custody of the children. In such cases the parents need to work together and co-operate in raising the children. The children may still spend more time — sometimes a lot more time — at one parent's home than the other, but both parents will be the children's joint custodians and their joint guardians.

It used to be the case that where the parties had trouble communicating with one another, the courts would automatically make an order for sole custody. This predispostion has pretty much disappeared, and the courts will usually allow even highly conflicted parents to have joint custody, as long as they share a fairly common idea of how the children should be brought up and are mature enough to keep their disputes between themselves. In a 1996 case from our Court of Appeal, Robinson v. Filyk, the court said that there should be no presumptions in favour of or opposed to joint custody, nor any presumption that joint custody should be allowed only where the parents are able to get along and communicate with each other:

"It is now clear that legal and factual presumptions have no place in an enquiry into the best interests of a child, however much predictive value they may have. The Supreme Court of Canada has stated absolutely clearly that such presumptions detract from the individual justice to which every child is entitled." The Supreme Court of British Columbia commented on Robinson in a 2010 case, B.L. v. B.T., saying that the courts have since "moved away from presuming that if parties have difficulty communicating, joint custody is not appropriate," suggesting that there there may in fact be an unspoken, unlegislated presumption in favour of joint custody.

Whether parents have joint or sole custody depends more on their relationship and approaches to parenting than it does on how much time each parent has with the children. A parent can see the children only on every other weekend, or live in another province altogether, and still have joint custody with the other parent.

Shared Custody

Shared custody is a kind of joint custody in which the children spend an equal or almost equal amount of time with each parent. Where parents have shared custody, the children will usually spend a certain amount of time with one parent at that home and a similar amount of time with the other parent at their home. Shared custody can require that the children switch homes every three or four days, every other week, every two weeks, or every month; the amount of time the children spend with each parent will depend on the circumstances of each case, the age of the children, the parents' work schedules and the schedules of the children's activities.

In many ways, this is an ideal form of custody since the children spend an equal amount of time with each paren, and have an equal opportunity to bond with each parent. Shared custody usually requires that:

the parents live fairly close to one another; the parents have adequate communication skills with one another; both parents are able to put the children's needs ahead of their own; the children are old enough to be able to tolerate the disruption of living in two different homes; and, the arrangement is in the best interests of the children. Of course, there are downsides to this sort of order. The strain of communicating so frequently with the other spouse can be a bit of a burden; it can be costly to maintain a full set of clothing, shoes, toiletries and supplies at each house; and, no matter what, the children are still moving from one house to another each week.

Split Custody

In this type of custody, one or more of the children live with different parents. Each parent may have sole custody of those children who are in his or her care or the parents may have joint custody of all of the children, regardless of where the children live. This is a fairly drastic form of order as it requires the separation of siblings and there is a risk that they may grow apart from each other as time passes.

These sorts of orders are only made where there is clear evidence that it is in the best interests of all of the children to fracture the family unit, such as when the siblings are constantly fighting or at each other's throats, or when one child has a particular attachment to a parent not wholly shared by the other children. In such cases, a s. 15 report confirming that the children ought to be split apart is essential.

Who Can Apply for Custody

In general, anyone who has a connection to a child may apply for custody of the child. Normally, the people who apply for custody are the biological parents or legal guardians of a child, but grandparents or other adults involved with the child may also apply for custody if they wish.

Spouses

According to s. 16(1) and (4) of the Divorce Act any person or persons can be granted custody of a child. Where that person is not a spouse or a former spouse, however, her or she must apply to the court under s. 16(3) for permission to apply for a custody order. The court may grant custody to non-parents.

People Other than Parents

While both acts make it clear that anyone can apply for the custody of a child, the court will presume that the biological and step-parents of a child are entitled to raise their own children unless there is a clear reason why this should not be the case. Again, as in all matters touching on children, the court's decision will rest wholly on what is in the best interests of the child, not the interests of the child's parents or those of third parties.

The general common law rules dealing with competing custody claims between a non-parent and a parent are these.

The natural parents of a child have a prima facie right to the custody of that child, except where they have abandoned the child or demonstrated a serious lack of fitness to have custody, such as in the cases of abuse or neglect. Custody should only be given to third parties when the natural parents are unwilling, unable or unfit to care for the child. The wishes of the birth parents should be heeded unless there is a serious reason why they shouldn't be, as in the case of a threat to the child's health and safety. The common theme here is that there must be a real and substantial concern about the fitness of the natural parents' ability to care for a child before that child is taken away and given to a third party.

More information about the interests grandparents and other non-parents may have in a child is set out in the first chapter of this section.

Access

Access, sometimes called "visitation," "contact" or "parenting time," is generally described as the time that the parent without a child's primary residence spends with the child. Simply being a parent, however, does not guarantee a right to access. As in all matters involving children, the court's primary concern is with the child's best interests, not with whatever the interests or preferences of the parents might be. An award of access to a parent must be in the best interests of his or her child. Section 16 of the Divorce Act, the section dealing with orders for custody and access says this:

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. In the vast majority of cases, the parent without the children's primary residence will have some amount of contact with the children, regardless of whether the parents have sole or joint custody. The amount of access can range from contact once or twice per month to a very involved schedule in which the parents share their children's time equally or near-equally.

Access is a basic parental privilege and a parent will be entitled to share in the life of his or her child unless he or she somehow poses a risk to the safety or well-being of the child. However, since the decision about how much access each parent should have involves a consideration of the child's best interests, a parent's failure to exercise that access and remain consistently involved in a child's life may be seen as contrary to a child's best interests. In the case of B.J.M. v. K.F.B., a 2003 decision of the Supreme Court of British Columbia, the court said this:

"By refusing to exercise access to his son, the father has essentially ignored the child's best interests since 1993." It is a basic principle of family law that it is in the best interests of children to maintain as much contact with both parents as possible and to maintain a strong bond with both parents. The essential point of an access order is to promote and nurture the child's relationship with the non-custodial parent and both parents have a duty to foster this relationship.

Access Difficulties

In some family situations, deciding access can be a serious problem. While most parents do their best to shield their children from the bitterness, anger and hard feelings that can sometimes accompany a divorce, children often absorb some of the emotional tensions in the household and can come to see the parent who left as "bad" compared to the "good" parent who stayed. As well, children can also form the impression that the "bad" parent is somehow hurting the "good" parent, although perhaps not in a way that they can understand. For these reasons among others, children sometimes come to dislike or resent the "bad" parent and not wish to see him or her.

In other situations, a child will demonstrate a natural separation anxiety on leaving a parent for the child's time with the other parent. Even though most children experience separation anxiety on leaving both parents, each parent only experiences only one side of the anxiety and never sees the child ease back into a warm relationship with the other parent. This sometimes leads parents to believe that the child doesn't want to see the other parent.

In difficult circumstances like these, complying with an order for access can be very difficult: the child seems not to want to go and visit the non-custodial parent, and the custodial parent feels badly about making them do something they don't want to do. It is critical to remember that:

the order for access is binding on the custodial parent, not the child; unless the child actually visits the other parent, the child might never get over his or her dislike or resentment; the reluctance a child displays about going to visit the other parent rarely reflects an actual dislike of the other parent; and, the child's relationship with each parent is valuable and deserves to be protected, and must be nurtured by both parents. As a general rule of thumb, the custodial parent has an obligation to do all he or she can to ensure that the child visits the non-custodial parent, no matter how much of a fuss the child puts up. Remember that as the child grows up, the court will pay more and more attention to the child's wishes even though the court may not heed them. It is always easier to accept that a child's reluctance to visit a parent is genuine when the information comes from the child him- or herself.

Access and People other than Parents

Children may also have a right to remain involved and in contact with the other people in their lives, such as grandparents, cousins, aunts, uncles, long-term caregivers and so forth. Grandparents, and other people who aren't parents, can apply for access to children on their own, with or without the co-operation of the parents. More information about the interests of grandparents and other non-parents is provided in the first chapter of this section.

Access and Child Support

A parent's access to a child is entirely different and separate from a parent's obligation to pay child support. Child support is not a fee paid to exercise access, nor is it a fee charged to allow access. Child support is paid by one parent to the other to help defray the costs associated with raising the child and help ensure that the child has as good and as enriching a childhood as possible. Access, on the other hand, is the privilege of a parent to visit and spend time with his or her child so that the child can have the benefit of a strong, loving and meaningful relationship with both parents.

To many parents this will seem like a fairly basic point. However, some people, particularly when a custodial parent withholds access, are tempted to cut off their child support payments to punish the custodial parent for not allowing access. Other people demand child support payment before they will allow a non-custodial parent to see his or her child. Either way, this behaviour is wrong and the person who suffers the most is the child, and the court will not approve of any attempt to barter access for child support or vice versa.

E. Key Statutory Provisions The important sections of the federal Divorce Act dealing with access are these.

s. 2: definitions s. 4: jurisdiction to make access orders s. 5: jurisdiction to change orders s. 16: access orders s. 17: variation proceedings

Factors in Making Orders for Access

Since neither the Divorce Act nor the Family Relations Act go into much detail regarding access, except to state the overriding importance of the child's best interests, the courts have had to come up with some guidelines of their own. The following are some of the factors the courts will consider in making an order for access.

Age of the child: The younger a child is, the more likely it is that an access award will be for short but frequent time periods only. The older a child is, the more likely it is that access will be granted for overnight visits and for more than one day in a row. Younger children often require more constant physical attention and more extended periods of time with the custodial parent. Distance between homes: If one parent lives far away from the other parent, the court may grant access on holidays or long weekends alone. Younger children, in general, do not have the tolerance for long road trips or extended air or ferry travel. Even school-age children may find extended travel times uncomfortable and disrupting. Work schedules: Access schedules must accommodate parents' work schedules. If a parent is off work and available to care for the children when the other parent is at work, the parent who isn't working ought to have the children. Parents' availability also dictates the timing of pick-ups and drop-offs and responsibility for the children when they're at school. Conduct of a non-custodial parent: If a parent is unable to meet the child's needs or behaves inappropriately, access to the child may be restricted. In the past, access has been denied to non-custodial parents with a history of alcoholism, abuse, or paedophilia or who have abducted the child or attempted to alienate the child from the other parent. Health of a non-custodial parent: If a parent has health problems which affect his or her ability to care for the child or his or her relationship with the child, a court may limit acess. Preferences of the child: The court will consider the wishes of the child once they reach about ten to twelve years of age, although there really is no magic age and the court will not be bound by the child's wishes. Younger children are generally assumed to be too emotionally and intellectually immature to make a reasoned decision about access. There really is no "standard" pattern of access. All of these factors usually get taken into account when an access schedule is designed, and in general an access schedule can be as creative as the flexibility of the parents and common sense allow.

A chart of different parenting schedules that accommodate some of these concerns is set out in the chapter Children > Parenting after Separation.

Types of Access Order

There are two main types of order in family law, interim orders and final orders. Interim orders are made before trial, and final orders are made either by a judge after trial or with the agreement of the parents without a trial. The first segment that follows discusses some peculiarities specific to interim orders, but the rest of the segments apply equally to both types of order. This information also applies to agreements about access.

Interim Orders

Interim orders are intended to be a sort of rough-and-ready solution to the legal problems a couple faces, pending a final decision at trial or a settlement of the action. Interim orders are short-term solutions intended to deal with the immediate problems about where a child will live and the role each parent will play in raising the child. Interim access will be decided after a decision has been made with respect to the child's primary residence.

While an interim order will be made based on the same considerations that apply to final orders, a lot of weight is usually given to the status quo — the parenting arrangements in place at the time the application for the interim order is made — in order to minimize the amount of disruption the child has to deal with while the parents' legal issues wind their way through the court system.

Note the wrongful conduct of parent will not establish a status quo that the court will respect. If a parent is seeing a child too little or if the other parent is withholding access, the court will act on an interim basis to expand the time the parent has with the child; if a parent has taken off with the child, a court may order the parent and child to return.

Specified and Unspecified Access

A typical access order provides either that the non-custodial parent will have an unspecified amount of time with the child or a specific schedule of access to the child. Some orders provide for both specified access and "such other access as the parties may agree."

Unspecified access is usually described as "liberal and generous access" in orders and family agreements. This sort of access is appropriate where both parents can communicate with each other reasonably well and each is prepared accommodate the other. Where there is any tension between the parties relating to the children, such an order may not be appropriate if there is a chance that one parent will withhold the child from the other. In fact, it may be a recipe for disaster.

Specified access is probably the more common kind of access. Specified access orders state at what times and dates the non-custodial parent will visit with his or her children. These orders can be quite complex, dividing holidays, birthdays, Mothers' Day and Fathers' Day, special school days, and so on. Specified access orders can encompass pretty much every kind of arrangement that you can think of, or be limited and general. A typical specified access order might provide that the non-custodial parent can see the child every other weekend, from a certain time on a certain day until a certain time on another day, on a couple of weeknights between certain times, and on certain holidays in alternating years.

In general, the more difficult the parties' relationship is following separation, the more likely it is that the order will specify the access schedule on very detailed terms. Some people just need a set of rules to live by.

A chart showing a number of different parenting schedules is available in the Children > Parenting after Separation chapter.

Conditional Access

A parent's access to his or her child can be made conditional on the parent doing or not doing something. If a parent fails to meet any of the conditions on which he or she may have access to the child, the parent's access to the child may reasonably be denied.

In general, the court must have some fairly serious concerns about a parent's lifestyle or behaviour before an access order will be conditional. Conditional access orders have been made in cases such as the following:

a parent was a heavy smoker (the condition being not to expose the child to second-hand smoke); a parent used drugs or alcohol (not to use drugs or alcohol while with the child and for a period of 24 hours before access); and, a parent was a dangerous driver (not to drive with the child in the car). In theory, access can be be made conditional for pretty much any kind of genuinely bad behaviour on the part of a parent.

Supervised Access

Access may be restricted where there is a concern that the access visits may harm the child. In extreme cases, the court may require that the non-custodial parent's access be supervised by a third party. Such supervision may be by a grandparent, another relative or a stranger. There are even companies who provide such supervisory services.

The courts are generally reluctant to require supervision as a condition of the non-custodial parent, but they will do so where:

there has been a history of child abduction or attempts to abduct the child; there is a history of abuse against the child or the other parent; the parent has attempted to poison or alienate the child against the other parent or otherwise interfere with the child's relationship with the other parent; or, there are serious concerns about the parent's ability to properly care for the child, which may include mental and physical illness. In general, supervised access is intended to be a short-term solution to a problem, rather than a permanent condition of access. Note that it is up to the custodial parent to show why access must be supervised.

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