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Protecting Your Child Custody and Access Rights

When two people have a child together, each parent has an equal right and responsibility to take part in the upbringing of the child. The equal right to make decisions about their child’s care and how their child is raised exists whether or not the parties are married.

Typically in a two-parent, intact family, parents share the decision-making responsibility. When parents separate, however, they must arrange how they will share or divide their respective parenting rights and responsibilities. In other words, separating parents must make arrangements for parenting time.

If you are divorcing or separating, then you need a skilled Ontario lawyer to make sure your parenting rights are protected. Feldstein Family Law Group P.C. has been serving clients across Ontario since 1994, and we have the necessary skill and experience in divorce and family law to effectively preserve your rights and interests.

While under the Children’s Law Reform Act the traditional terms of “custody” and “access” remain in place, as of July 1 2020, the Divorce Act was amended to remove any references to the terms “custody” and “access”, instead referring to “parenting time” and “decision-making responsibility”.

It is important to know which Act will apply to your situation. Marital status is relevant in order to determine which Act will apply to your particular situation. Therefore, if you and your former spouse/partner are married and have decided not to obtain a divorce, are living together as a common law couple, or as not cohabitating but have a child together you must use the Children’s Law Reform Act R.S.O. 1990, c. C.12. However, for situations where you are legally married and in the process of getting a divorce or have already obtained one, the Divorce Act R.S.C. 1985, c.3 will apply.

Children’s Law Reform Act

What is Custody?

Custody is the right to make important decisions about the care and upbringing of a child. Custody includes the right to make decisions regarding the child’s religion, school and educational programs, and medical treatment.

Different types of custody include sole custody, joint custody, share custody, and split custody.

Sole Custody

If a parent has sole custody of a child, it means that only one parent has the responsibility and legal authority to unilaterally make major decisions about the child’s care and how the child will be raised. Most commonly, the child lives primarily with the parent who has sole custody.

Sole decision-making authority is often given to only one parent where there is serious parental conflict; concerns of abuse, violence, drug or alcohol abuse; mental illness or demonstrated poor judgement. A sole custody arrangement helps mitigate concerns or limit risks in the life of the child.

Joint Custody

Separated parents can opt for joint custody in cases where there are in agreement on major issues affecting the life of their child and they have few or no concerns about each other’s judgement.

In Ontario, joint custody is when parents share the rights and responsibilities of custody even though they live apart. Under this custody arrangement, both parents legally have an equal say about the major decisions affecting their child. Neither parent has the right to unilaterally make major decisions about the child’s care. With joint custody, it is assumed that the parents can reach decisions either by consensus or by one acquiescing to the judgement of the other.

Joint custody requires cooperation and works best when there is little conflict between the parents, since it promotes that the parents maintain a harmonious relationship. Joint custody can also work in cases where there is moderate conflict, but the parents are able to resolve disputes maturely.

A common misunderstanding about that joint custody is that both parents also have equal access to the child. This is not always the case. When parents have joint custody of a child, the child may live primarily with one parent, or there may be a shared custody arrangement. Regardless, joint custody only related to the decision-making authority of each parent; it has minimal influence on the amount of time the children spend with each parent.

Shared Custody

Unlike the other custodial arrangements, share custody has to do with the amount of time the child spends with each parent for the purpose of determining each parent’s respective child support obligation. Under the Child Support Guidelines, shared custody exists where a child lives at least 40% of the time with each parent. The 40% time can be comprised of weekends, overnights, and parts of vacations.

Split Custody

Although not very common, another type of custody arrangement is split custody. This exists where the parents have more than one child together, and each parents has one or more of the children living primarily with them.

What is Access?

When one parent is awarded sole custody of the children, the other parent is normally granted the right of access. This is sometimes called visitation. In addition, if both parents have joint custody of a child, but the child’s primary residence is with one parent, the other parent is granted the right of access.

Access visits can either be unsupervised or supervised, depending on what is in the best interests of the child. Most often access is unsupervised. This is where the child goes to visit the parent, and no one else needs to be present while the child and the access parent are together.

A typical access schedule involves the child spending alternate weekends and one or two evenings or nights per week with the parent not having primary care and control of the child. Typically, the access parent will also share holidays, including statutory holidays (long weekends), winter school break, March break, and summer holidays.

Custody vs. Access in Canada

Once you and your former spouse/partner have made the decision to separate or divorce, there are a number of issues for the two of you to consider and resolve. If you have children, you will need to make some tough decisions about your kids’ custody and care. These decisions will have to be made whether you were legally married or living together as a common law couple. As separated or divorced parents, you will either be awarded custody of your children or given access to your children.

The main difference between custody and access is that, as the custodial parent, you usually have the power to make important decisions about the care and upbringing of your child with regards to:

  • Religion;
  • School and educational programs; and
  • Medical treatment.

On the other hand, if you are only granted access rights, as the non-custodial parent you have the right to:

  • Visit your child; and
  • Ask the custodial parent, your child’s teacher, doctor, daycare provider, etc. for information about:
    • Your child’s health;
    • Education; and
    • Welfare.

It is important to note that as an access parent you are not granted the authority to make any important decisions regarding the upbringing of your child. If a disagreement arises between you and your former spouse/partner, the custodial parent will make the final decision. However, the custodial parent in your situation must still consult with the access parent prior to making any final “important” decisions.

Divorce Act

What is Parenting Time?

Parenting time refers to the period during which an individual is primarily responsible for the child, including when the child is in school or daycare. Each spouse has the sole authority to make day-to-day decisions affecting their child during their parenting time. Pursuant to section 16.2(1) of the Divorce Act, parenting time may be allocated according to a schedule which may be helpful in situations of high conflict.

Equal parenting time is not presumed but rather, as with decisions regarding decision-making responsibility and contact, the primary consideration is the child’s physical, emotional and psychological safety, security and well-being.

What is Decision-making Responsibility?

Decision-making responsibility is the responsibility to make important decisions about the child’s well-being, including the child’s heath, education, culture, language, religion and spirituality and significant extracurricular activities. According to section 16.3 of the Divorce Act, decision-making responsibilities can be shared between spouses or allocated to just one spouse or other person who currently stands, or intends to stand in the place of a parent. Anyone who has decision making responsibility must base relevant decisions on the best interests of the child.

Courts have the option of separately allocating different decision-making responsibilities to each parent where ordering joint-decision-making responsibility is not appropriate.

What is Contact?

Contact refers to the time that someone who is not a spouse has with a child, including grandparents. People with contact do not have the right to make day-to-day decisions affecting the child.

Best interests of the Child – Primary Consideration

As a result of the new changes, section 16(3) of the Divorce Act and section 24(2) of the Children’s Law Reform Act set out a list of enumerated factors to be taken into consideration in assessing the best interests of the child. The best interests of the child, including the child’s safety, security and well-being, are the primary consideration in determining parenting time and decision-making responsibility under the Divorce Act and custody and access under the Children’s Law Reform Act.

If your matter is governed by the Children’s Law Reform Act, the factors to be considered in the best interests of the child analysis are outlined in section 24(3) and include:

  1. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  2. the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
  3. each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
  4. the history of care of the child;
  5. the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  6. the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  7. any plans for the child’s care;
  8. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
  9. the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
  10. any family violence and its impact on,
    1. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    1. the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the chid; and
  1. any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

If your matter is governed by the Divorce Act, the factors to be considered in the best interests of the child analysis are outlined in section 16(3) and include:

  1. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  2. The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
  3. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
  4. The history of the care of the child;
  5. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  6. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  7. Any plans for the child’s care;
  8. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
  9. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
  10. Any family violence and its impact on, among other things,
    1. The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    1. The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
  1. Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Find out more about custody and access as it relates to your individual situation. Call (905) 581-7222 today to speak with an Ontario custody lawyer about your rights.

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    Location: Markham Daphna Schwartz joined Feldstein Family Law Group, P.C. in 2007 as an associate lawyer. She was previously ...
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    Anna Troitschanski joined the team at Feldstein Family Law Group, P.C. in 2012. Prior to that, she practised Family Law at a boutique Newmarket firm. Her experience covers all areas of divorce and family law, including custody and access, child support, spousal support, and division of property.
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    Veronica Yeung joined the Feldstein Family Law Group, P.C. as a summer student in 2014 and returned as an articling student in 2015. Following her call to the Ontario Bar in June 2016, Veronica was welcomed to the team as an associate lawyer.

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    Shazia Hafiji joined Feldstein Family Law Group P.C. as a summer student in 2016 and returned as an articling student in 2017. Following her Call to the Ontario Bar in 2018, Shazia returned to the firm as an associate lawyer.

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    Lucy D’Ercole joined Feldstein Family Law Group P.C. as a summer student in 2017 and returned as an articling student in 2018, during which she gained valuable experience in all areas of family law. Following her call to the Ontario Bar in 2019, Lucy was welcomed back to the firm as an associate lawyer.
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