The various forms of parenting arrangements seen in Ontario involve two different legal terms: custody and access, which are applicable to both married and non-married parents, whether or not they cohabitated.
Quite often, people misunderstand the term custody. The Divorce Act defines custody quite broadly, as including “care, upbringing and any other incident of custody.” Custody is best understood as the right to make fundamental decisions concerning your child regarding religious practices, education, health, and wellbeing. In Canada, both parents are equally entitled to seek custody.
While custody refers to the right to make decisions affecting your child’s wellbeing, it does not relate to how much time you spend with your child. The time your child spends in your care is known as access.
Different Types of Custody
Sole custody means that one parent retains the right to make fundamental decisions regarding the upbringing and wellbeing of the child. In this scenario, the non-custodial parent (typically known as the “access parent”) may express an opinion on important issues, and retains the right to be informed of all major decisions, but the custodial parent has the right to make all final decisions.
Joint custody refers to a relationship where both parents share an equal responsibility for decision-making. A key factor to consider in requesting joint custody is that parents should be able to cooperate in order to serve the best interests of their children. This means parties must have the ability to communicate effectively, and be willing and able to set aside conflicts when faced with important parenting decisions. If you and your former spouse or partner are unable to co-parent constructively, a court is unlikely to grant joint custody.
In split custody situations, both parents have sole custody of one or more of the children. For example, daughters of the marriage may live with mother, while sons of the marriage reside with father. This type of custody arrangement is rare, in that courts are not inclined to separate siblings during the process of separation and divorce. Where split custody has been ordered, it is usually because the children are old enough to express an opinion about which parent they wish to live with, and have that opinion given considerable weight by the court.
The term shared custody is often confused with joint custody. In reality, shared custody is a type of access arrangement and does not have anything to do with which parent has legal decision-making power. Shared custody occurs when each parent has the children for at least 40% of the time – in other words, the child’s time is split between the parents roughly equally. Parents can have shared custody whether or not they also have joint custody (joint decision-making power). Shared custody relationships can have a particular impact upon child support, as shared custody arrangements are treated differently under the Child Support Guidelines.
Custody arrangements do not have to fit perfectly into one of these models. There is room for compromise and for solutions that fit the parties’ individual circumstances. For example, some parents with joint custody choose to elect one caregiver as the primary decision-maker regarding educational matters, while the other maintains control over decisions surrounding religious practices. These types of options can be documented by your Ontario family lawyer in a separation agreement and may help to negate some common sources of conflict.
Different Types of Access
Access means the right to spend time with your child, and includes the right to make inquiries, and to be given information as to the health, education, and welfare of your child. Access refers to time spent parenting a child, but does not encompass the right to make fundamental decisions about the child’s upbringing, which is a right that comes with custody. For example, an access parent may request a copy of a school report card or meet with a child’s teacher, but cannot make major decisions regarding education such as moving the child to a different school; these decisions are the right of the custodial parent.
Access schedules may be “fixed” (the access parent has access on certain specific days and times) or “open” (access schedule is flexible and to be determined by the parties), depending on the needs of the family. For example, a parent’s shift work may prevent a fixed bi-weekly access schedule; however, a more open order or agreement for access of “four overnight visits per month” may help to alleviate conflicts over scheduling.
Supervised access involves time spent with a child under the supervision of another party, such as a relative or social worker, or at a supervised access centre. Supervised access is only ordered in situations where there is concern about the safety or wellbeing of the child, for example where there is a history of substance abuse, domestic violence, or parental alienation. The Divorce Act mandates maximum contact between parents and children so long as it is consistent with the child’s best interests. Supervised access is a mechanism to allow the child to spend time with a parent and at the same time ensure the safety of the child.
When supervised access is ordered, it is generally done only on a temporary basis. If the parent demonstrates during supervised access that their visits are beneficial to the child, and the parent respects the terms of the access order, they can often progress to unsupervised access visits of gradually increasing lengths of time.
Orders for no access occur only in the most extreme cases involving circumstances such as proven child abuse and/or neglect, or where a child’s safety cannot be protected in a supervised access setting.
Contact an Ontario Child Custody Lawyer to Learn More
For information on creating a parenting plan setting out your and your former partner’s preferred custody and access arrangements, see our article: What is a Parenting Plan? If you and your partner end up in court litigating your custody or access dispute, you should be aware that the court will make any decision in light of the best interests of the child or children. See our article: Best Interests of the Child for more information.
We also welcome you to call our offices at (905) 581-7222 to arrange a confidential consultation with one of our lawyers.