Difference between revisions of "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, 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''.

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

*s. 4: the court's jurisdiction to make custody orders

*s. 16: custody orders

Custody orders fall into one of two categories, 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 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 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 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.

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 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:

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.

 

 

 

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.

 

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:

 

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:

 

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.

 

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.

 

 

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.

 

 

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.

 

 

 

 

s. 4: jurisdiction to make access orders

 

 

 

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.

 

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.

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.

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 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.

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.

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.

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.

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

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.