People who are not guardians, including parents who are not guardians, do not have parental responsibilities. Their time with a child is called ''contact''. A person who is not a guardian does not have <span class="noglossary">decision-</span>making authority when the child is in their care.
==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 one or both spouses. An arrangement where both spouses share custody 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 both spouses will participate in making parenting decisions. An arrangement where only one spouse has custody is called ''sole custody''.
Access generally refers to the schedule of the child's time between spouses. There are no fixed rules about what access should look like. The factors that the court usually thinks about when making decisions about access 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 spouse's parenting capacity.
A spouse's access to a child is entirely different and separate from their 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 cover the <span class="noglossary">costs</span> associated with raising the child and providing them with as positive and as enriching a childhood as possible. Access, on the other hand, is the <span class="noglossary">privilege</span> of a spouse to visit and spend time with their 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.
<span style="color:#D2691E">'''Important changes'''</span> <br />
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. Decision-making responsibility under the ''Divorce Act'' means the same thing as parental responsibilities under the ''Family Law Act''.
Older orders and agreements that use the terms custody and access are still good and don't need to be updated to the new language. If you have an older order or agreement that says you have custody, you now have decision-making responsibility for your children. If you are or were married to your ex and have an agreement that says you have access, you now have parenting time.
===Factors in custody awards===
There are 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 that have developed through the courts. As far as the legislation is concerned, section 16(8) of the ''[[Divorce Act]]'' provides that:
<blockquote><tt>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.</tt></blockquote>
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, 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 <span class="noglossary">account</span> the preferences of children who are 10 or 11 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. 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.
While both the ''Divorce Act'' and the ''Family Law Act'' speak of a child's best interests, section 16(10) of the ''Divorce Act'', the ''Maximum Contact Principle'', flies in the face of the ''Family Law Act's'' presumption in section 40(4) that in making parenting arrangements, no particular arrangement is presumed to be in the best interests of a child.
<span style="color:#D2691E">'''Important changes'''</span> <br />
Under the changes to the ''Divorce Act'', "custody" is now known as ''decision-making responsibility'', and judges have a long list of best-interests factors to take into consideration when making decisions about decision-making responsibility. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the ''Divorce Act'' now includes a list of additional factors for judges to consider, including the nature and frequency of the violence.
===Factors in access awards===
Section 16(10) of the ''Divorce Act'' says this about making orders for custody and access:
<blockquote><tt>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.</tt></blockquote>
This subsection has come to be known as the ''maximum contact principle'', for the obvious reason. This principle is not absolute, however. As the BC Court of Appeal in [http://canlii.ca/t/h420f ''R. (T.) v. R. (D.)''], 2017 BCCA 203 recently explained, the maximum contact principle is "tempered by the fact that contact must still be in the child's best interests." For example, it would not be 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. If a parent's past conduct is relevant to their ability to act as a parent, then that past conduct may be considered.
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 pedophilia, 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 that affect their ability to care for the child or their 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 10 to 12 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 <span class="noglossary">decision</span> about access.
There really is no standard pattern of access. All of these factors usually get taken into <span class="noglossary">account</span> 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.
This chapter has a chart of different parenting schedules that accommodate some of these concerns in the section [[Parenting after Separation]].
<span style="color:#D2691E">'''Important changes'''</span> <br />
Under the changes to the ''Divorce Act'', "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. Judges also have a long list of best-interests factors to take into consideration when making decisions about children, including decisions about parenting time and contact. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the ''Divorce Act'' now includes a list of additional factors for judges to consider, including the nature and frequency of the violence.
==Resources and links==