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→Factors
=====Factors=====
There are two sets of factors that judges and arbitrators will consider in making orders about how children's parenting time will be allocated between their parents, the factors set out in the legislation and the additional factors that have developed through the courts. As far as the legislation is concerned, the most important factors are the children's best interests. Section 16 of the ''[[Divorce Act]]'' says that:
<blockquote><tt>(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.</tt></blockquote>
<blockquote><tt>(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. ...</tt></blockquote>
<blockquote><tt>(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.</tt></blockquote>
<blockquote><tt>(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.</tt></blockquote>
The list of ''Divorce Act'' best-interests factors is set out in section 16(3), and the list of additional factors to be considered when considering the impact of family violence is set out in section 16(4).
Section 37 of the ''[[Family Law Act]]'' says this:
<blockquote><tt>(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. ...</tt></blockquote>
<blockquote><tt>(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.</tt></blockquote>
<blockquote><tt>(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.</tt></blockquote>
The list of ''Family Law Act'' best-interests factors is set out in section 37(2), and the list of additional factors to be considered when considering the impact of family violence is set out in a separate section, section 38.
The courts have expanded these factors into the following general principles when determining how the children's parenting time will be allocated. The court may consider:
*the age, maturity and independence of the children,
*which parent was the children's primary caregiver during the relationship,
*the distance between the parent's homes,
*the parents' work schedules and the children's school schedule and schedule of extracurricular activities,
*whether siblings should be kept together, which is usually the case although siblings can be separated if it is in their best interests to do so,
*whether the children are in a stable and satisfactory setting, and if so, whether the children's interests long-term interests justifies upsetting a stable arrangement,
*each parent's character, fitness, and overall parenting capacity, depending on the circumstances of the case and as long as issues like this are genuinely important and relevant,
*each parent's mental and physical capacity, again depending on the circumstances of the case and as long as issues like this are genuinely important and relevant,
*the impact of any family violence, and the steps taken by a parent to prevent further family violence from occurring, and
*the wishes of the children, particularly those of children who are 10 or 11 years old or older, although the court isn't required to make the order the children would prefer.
There really is no standard pattern of parenting time, although there has been a trend . 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]].
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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.
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