Child Custody and Access

Child Custody and Access

A divorce or separation immediately gives rise to the question of custody of minor children. The direction of an experienced lawyer can be helpful in finding lawful and amicable resolutions. This can prevent the unpleasant battles that sometimes arise concerning child custody.

Custody refers to a bundle of rights and responsibilities. A person who is awarded custody is responsible for the child on a daily basis and the person makes the major decisions on behalf of the child. Section 20 (1) of the Children’s Law Reform Act states that “ except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child”.

Access refers to visitation rights.  A person who is granted access has the right to visit with the child. He or she will also be kept informed about the child’s health, education, religion and general well-being.

Both the Federal Divorce Act   and the provincial Children’s Law Reform Act   provide the Court jurisdiction to determine custody and access matters. Both the Children’s Law Reform Act and the Divorce Act base the merits of the application for custody and access on the best interests of the child.

Sole or Joint Custody
The Court also has the authority to order sole or joint custody.

Sole custody refers to when only one parent can make major decisions with respect to the child. Joint custody gives each parent the right to have an input into major child related decisions. Joint custody does not necessarily mean that parents share equal time with the child. However, sometimes that might be the case.  Joint custody refers to the legal decision making and not the residential arrangements.

Parental Conduct
As outlined in subsection 16(9) of the Divorce Act and subsection 24(3) of the CLRA, a parent’s conduct will only be considered by the court if the conduct is relevant to the ability of that person to act as a parent of a child. Physical violence is an aspect of conduct more likely to be taken into account in custody and access matters.