Difference between revisions of "Custody and Access"

{{JP Boyd on Family Law TOC}}

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.

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.

s. 16: custody orders

s. 17: variation proceedings

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:

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.

Section 15 of the Family Relations Act allows the court to order that an assessment be conducted of each party's parenting abilities and relationship with their children by a mental health professional. These are known as "section 15 reports" or "custody and access reports." These reports are particularly important where the dispute between the parties is especially fractious and unlikely to settle.

A list of some of the psychologists and psychiatrists who prepare s. 15 reports is provided in the Resources & Links section.

A views of the child report, sometimes called a "hear the child report," is exactly what it sounds like: it is a report which describes the child's preferences about his or her parenting arrangements and living circumstances. These reports might address a child's preferences about the home he or she would like to live in, whether the child wishes to move out of town with a parent, or the schedule of the child's time with each parent. It might address the child's experiences of the conflict between his or her parents, or perhaps the child's experience with a parent's new partner.

It is important to know that the court will not make a decision based only on what the views of the child report says. The child is not making the decision and will not be responsible for making the decision. It's important for the child to know this as well.

Expert views of the child reports usually wind up looking like condensed custody and access reports which focus on the child's reports to the asssessor and include an opinion as to whether the child's reported preferences represent the child's true preferences, whether the child was coached to report the preferences reported, and perhaps whether the child is being alienated from one parent by the other parent.

the child is more than six or seven years old; and,

the judge wants to hear from the child but does not want to interview the child him- or herself.

Views of the child reports prepared by lay persons like lawyers, family justice counsellors or therapists do not provide the same level of analysis or authority offered by expert views of the child reports. These people are not qualified to offer an opinion about the child's state of mind or the truthfulness of the child's statements. All they can really do is say what the child told them.

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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 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.

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.

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

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.

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.

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 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.

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.

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.

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.

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.

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.

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, 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:

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.

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.

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.

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.

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

s. 16: access orders

s. 17: variation proceedings

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.

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

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.

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.

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."

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

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 theory, access can be be made conditional for pretty much any kind of genuinely bad behaviour on the part of a parent.

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.

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.

==Further Reading in this Chapter==