Custody and Access

When married spouses with children younger than the age of majority separate, 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, arguments about parenting issues like these are the most difficult parts of ending a relationship. Under the Divorce Act, which applies just to married spouses, these issues are addressed through orders about custody and access.

This chapter talks about custody and access, and discusses the factors that govern awards of custody and access and the types orders about custody and access that can be made.

Introduction

The federal Divorce Act talks about the care of children in terms of custody and access. Custody is the right to have the child with you and the right to make parenting decisions about the child, such as 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. Access is the schedule of the child's time between spouses.

Custody can be held by more both spouses; this is called joint custody. Having joint custody doesn't mean the child's time is equally split between the spouses' homes, but it does mean that they are both assumed to be good parents and that both will participate in making parenting decisions.

Access generally refers to the schedule of the spouse with the least amount of time with the child. There are no fixed rules about what access should look like. The facts that the court usually thinks about include:

• the distance between the spouses' homes,
• the quality of the child's relationship with both spouses,
• the history of the child's care before the spouses separated,
• the child's age and stage of development,
• any arrangements that have already been made for siblings, and
• any limitations on a spouses' parenting capacity.

A spouse's access to a child is entirely different and separate from his or her 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 spouse to the other to help defray the costs associated with raising the child and help ensure that the child has as positive and as enriching a childhood as possible. Access, on the other hand, is the privilege of a sposue 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 spouses.

Other people, usually relatives of the child like a grandparent, can have custody or access to a child. To apply for an order for custody or access, people who aren't spouses must first get the court's permission, and then make their application. Applications like these aren't very common.

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 Divorce Act is only available to parents who are or used to be married to each other, and the person making the application under the act must have been "habitually resident" in the province in which the application is made for at least one year.

These are the important sections of the Divorce Act which talk about custody and access:

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

Who can apply for custody and access

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 or adoptive parents of a child, but grandparents and 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 or access to a child. Where that person is not a spouse, he or she must apply to the court under s. 16(3) for permission to apply for a custody or access order. The court will grant custody and access to people other than parents and stepparents in the right circumstances.

People other than parents and stepparents

While the Divorce Act is clear that anyone can apply for the custody of a child, the court will presume that the biological, adoptive and stepparents of a child are entitled to raise the 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 what is in the interests of the child's parents or those of third parties.

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

• The natural or adoptive parents of a child have a presumptive right to the custody of that child, except where they have abandoned the child or demonstrated a serious lack of fitness to have custody, as might be the case in situations of abuse or neglect.
• Custody should only be given to third parties when the natural or adoptive parents are unwilling, unable or unfit to care for the child.
• The wishes of the natural or adoptive parents should be heeded unless there is a serious reason why they shouldn't be, as might be 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 or adoptive parents' ability to care for a child before that child is taken away from them and given to a third party.

Children may however have an interest in remaining 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 grandparents and other non-parents may have in a child is provided in the first page of this chapter.

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.

The courts have expanded these factors into 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, fitness and ability to parent may be considered in determining custody, depending on the circumstances of the case and 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 and and again as long as issues like this are genuinely important and relevant.
• Siblings will usually be kept together, although they can be separated when it would be in their best interests to live apart.
• 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 disturbing their present stability.
• The court will generally take into account the preferences of children who are ten or eleven 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 on 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.

Factors in access awards

Section 16(10) of the Divorce Act says this about making orders for custody and access:

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

This subsection has come to be known as the maximum contact principle, for the obvious reason. However, the idea that the nature and extent of a spouse's time with the child must be consistent with the child's best interests is just as important as the idea that the child should have as much contact with each parent as is possible. It is not in a child's best interests to have extensive visits with a parent who is abusive, trash-talks the other parent, has poor parenting skills, is addicted to drugs or alcohol or has a history of being uninvolved in the child's life.

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 spouse: 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 spouse: 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 access.
• 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 spouses and common sense allow.

A chart of different parenting schedules that accommodate some of these concerns is provided in the page on Parenting after Separation.

Types of custody order

Custody orders are either one of two types, they are either interim orders, made after a court proceeding 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. Interim orders are not meant to be perfect orders and are often made on less than perfect evidence. The result at trial may be the same or different than the situation in the interim.

An interim custody order is not 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 mostly 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 arrangement 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, however, be changed. Generally, a parent will apply to vary an interim order where there has been a change in circumstances which has 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 view 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, 1996 CanLII 3310 (BC CA) 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."

However, our Supreme Court of British Columbia commented on Robinson in a 2010 case called B.T. v. B.L., 2010 BCSC 1813 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. Joint custody is not about an equal sharing of the children's time.

When spouses have joint custody, they need to work together and co-operate in raising the children. This can sometimes be difficult, particularly when there is a lot of conflict in the spouses' relationship with one another. Before the Family Law Act came into effect, the rights and obligations involved in joint custody were usually addressed through a guardianship order under the Family Relations Act, in particular through two models of joint guardianship, the Horn model and the Joyce model. The Family Law Act doesn't talk about guardianship the way the old law did and can't be used to spell out spouses' rights and obligations in the same way. However, since joint custody involves the need to work together and co-operate in making parenting decisions, the models can still work. They just need to be changed a bit.

The Joyce model for joint custody

The Joyce model, created by Mr. Justice Joyce, is fairly detailed and requires spouses to consult with one another on all important decisions affecting the child and to make their best efforts to work together to reach a solution that is in the best interests of the child. When spouses can't agree on a decision, the Joyce model might say that one spouse will have the last word, or it might say that the spouses will try to mediate the issue, consult a child psychologist about the issue, or ask a judge for an order on the issue.

Here's the standard version of the Joyce model adapted for spouses who have joint custody:

The spouses will have joint custody of the child on the following terms:

1. in the event of the death of a spouse, the surviving spouse will have sole custody of the child,
2. each spouse will have the obligation to advise the other spouse of any matters of a significant nature affecting the child,
3. each spouse will have the obligation to discuss with the other spouse any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare,
4. the spouses will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions,
5. in the event that the spouses cannot reach agreement on a significant decision despite their best efforts, the spouse with the primary residence of the child will be entitled to make those decisions and the other spouse will have the right to apply for an order respecting any decision the spouse considers contrary to the best interests of the child, under s. 16(1) of the Divorce Act, and
6. each spouse will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers.

The Horn model for joint custody

The Horn model is more about the guardians' rights to get information about the child, usually about the child's schooling, health, and extracurricular activities. The Horn model implies that the guardian with whom the child mostly lives will be entitled to make decisions about the child as he or she sees fit, with the other guardian having a right to information about the child. Under s. 49 of the Family Law Act, however, that guardian will always have the right to ask the court for directions on the subject of the other guardian's decision.

Shared custody

Shared custody is a term used by the Child Support Guidelines to describe a kind of joint custody situation 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 parent, 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

Split custody is a term used by the Child Support Guidelines to describe a kind of parenting situation in which one or more of the children live with mostly with each parent. The parents may have sole custody of the children in their care or they may have joint custody of all of the children, regardless of where the children live.

This is a fairly unusual 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 needs of the child assessment, prepared under s. 211 of the Family Law Act, confirming that the children should be split apart is essential.

Types of access order

Orders for access are either of two types of order, 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.

Interim orders

The page on Interim Applications in Family Matters in the Resolving Family Law Problems in court chapter, discusses interim orders more fully. Interim orders are intended to be a sort of rough-and-ready solution to the legal problems spouses face after they have separated, and are really only meant to last until a final decision is made following 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 spouse 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 spouses' legal issues wind their way through the court system.

However, the wrongful conduct of spouse 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

Every order for access, whether interim or final, will say that a spouse will have either a set schedule of time with the child or something much or ambiguous that really isn't a schedule at all. Some orders will provide for both a set schedule of 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 the spouses can communicate with each other reasonably well and each is prepared to accommodate the other. Where there is any tension between the spouses relating to the children such an order may not be appropriate, particularly 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 a spouse will have the child. 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 a spouse will 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 spouses' 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 page on Parenting after Separation.

Conditional access

A spouse's access to his or her child can be made conditional upon 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 that poses an actual risk to the child.

Supervised access

Access may be restricted where there is a concern that the visits may result in harm to the child. In extreme cases, the court may require that a spouse's access be supervised by a third party. Such supervision may be by a grandparent, another relative or by a person who specializes in supervising access. There are even companies who provide supervised access services.

The courts are generally reluctant to require supervision as a condition of a spouse seeing a child, 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. Remember that it is up to the spouse who says someone's access should be supervised to prove why it should be supervised.

Page resources and links

Legislation

• Divorce Act
• Canadian Bar Association BC Branch: Custody and access, guardianship, parenting arrangements and contact
• Legal Services Society's Family Law Website: Access
• Legal Services Society's Family Law Website: Custody
• Clicklaw Common Question: We can’t agree about who the children should live with

Links

• bulleted list of linked external websites referred to in page
• list of related public resources