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Custody and Access

Learn The Facts Before You Act

Determining child custody, access and parenting schedules can be the most difficult and emotionally challenging choices that parents have to make when they decide to separate or divorce.  A child custody lawyer can help protect your child custody rights and obligations and the rights of your children. 

Ideally, you and your spouse will be able to come to an agreement with respect to all issues dealing with the children.  After all, no one is better qualified to make these decisions than the children’s parents.  You are the ones who know your children and your own lives the best and are in the best position to determine what will be in the children’s best interests.

It is vital that you have a qualified family law lawyer review any child custody agreements before you sign.  Also, make sure that your spouse has the agreement reviewed by a separate, independent lawyer, to avoid problems with the agreement in the future.

What are custodial rights?

Having custody of a child means having the day-to-day care and control of that child. You have the right to make decisions affecting that child, but you also have the duty to provide that child with a home and the care that the child needs on a daily basis. 

There are different types of custody, including:

  • Sole or full custody, where one parent takes on all of the custodial rights and obligations after a separation.
  • Joint or shared custody, where the parents share the custodial rights and obligations (either equally or in some specified proportion).

An experienced family law lawyer can explain all the legal implications of the various configurations that custody, access and guardianship can take.

What are guardianship rights?

Having guardianship of a child means having the right to make important decisions for the child, such as:

  • Decisions affecting a child’s health care.
  • Major decisions relating to a child’s education (which schools the child will attend).
  • Decisions regarding a child’s religious training.
  • Decisions relating to the management of any property that the child owns.

The federal Divorce Act does not distinguish between custody and guardianship rights, and some provinces are now following suit.  In these provinces (including BC), the right to make major decisions for a child is included in the child custody rights.

What are access rights?

In situations where one parent has sole custody of a child, the non-custodial parent generally has access rights.  Access rights are the basic right of the child to spend time with a parent.  Access will only be withheld if a parent is found to pose a risk to the child. 

What is joint custody vs. shared custody?

Joint custody generally requires parents to consult each other on a regular basis regarding the day-to-day decisions affecting the children.  In the past, where there was evidence that a joint custody arrangement would lead to ongoing conflict between the parents, courts would order that one parent should have sole custody of the children. 

More recently, the trend has been for courts to avoid sole custody orders in favour of shared custody orders.  In a shared custody arrangement, each parent has the right to make decisions affecting the children when they are in his or her physical care.  There is often a duty for the custodial parent to inform the other parent of any decisions that are made affecting the children, but not a duty to consult. 

How does a court decide child custody issues?

If parents are unable to come to an agreement with respect to child custody and access issues, the court may have to decide for them.  A court makes its decisions based on the best interest of the child.  Factors that the court will consider include:

  • The health and emotional well-being of the child, including any special needs for care or treatment.
  • The views of the child, depending on the child’s age, maturity, and other factors.
  • The love, affection and other ties that exist between the child and the other people involved in the child’s life.
  • Education and training opportunities for the child.
  • The relative abilities of the people that the court is considering as caregivers for the child.

Courts will generally follow the principle that the child should have maximum contact with each parent. In making any decision regarding custody or access, the courts will look at all the facts relating to the best interests of the particular child in question, including:

  • Who looked after the child during the marriage or relationship?
  • Does the child have a stronger bond with one parent?
  • How hard will each parent work to ensure that the child spends time with the other parent?
  • What are each parent’s plans with respect to caring for the child?
  • How well can the parents communicate and cooperate with each other?
  • How will the proposed order affect the child?
  • Will the proposed order be in the child’s long-term best interests?
  • Will the proposed order disrupt the child’s life?  Has the child already settled into a new post-separation routine?
  • Will the proposed order disrupt the child’s schooling or take the child away from friends and family?

If you need to seek the help of the court to determine custody and access issues, consult an experienced family law lawyer.  It can be extremely difficult to prove to a court that your proposal is in the child’s best interest. Your lawyer can help you to properly frame the facts relating to your situation in a way that will help the court reach a decision. 

What are a grandparent’s rights to see grandchildren after a separation or divorce?

A grandparent, or another person who has a relationship with the child, can apply for custodial or access rights to the child.  However, in cases where there is at least one parent still involved in the child’s life, the court will rarely seek to interfere with that parent’s decisions regarding the involvement of the grandparents. 

Any decision that a court makes regarding grandparents will take into account the best interest of the child.  Consult a child custody lawyer for further advice on this issue. 

Your lawyer can explain child custody laws in Canada.

The child custody laws in Canada are complex.  Add to that the stress and emotional challenge of dealing with legal issues relating to your children, and this becomes one of the most difficult aspects of a divorce or separation.  Don’t try to go through this alone.  Contact a family law lawyer today and proceed with the confidence of knowing that you have your lawyer’s years of training and experience on your side.