Custody & Access

Child custody and access in Ontario is governed both by the Federal Divorce Act (RSC 1985, c 3 (2nd Supp)) and Ontario’s Children’s Law Reform Act (RSO 1990, c C-12). Generally, the Divorce Act will apply to married couples that are divorcing or modifying a court order from a previous divorce. The Children’s Law Reform Act applies to parties that are unmarried or, sometimes, to separated married couples who do not wish to divorce. Regardless of the statute you fall under, the laws governing custody and access are similar.

This article will explain what the terms custody and access mean, and will provide the general guidelines judges use in deciding custody and access in family law disputes.

What is Custody?

A parent who has custody has the authority to make major decisions concerning their child. These decisions include:

  1. Educational Decisions (Example: Which school the child attends);
  2. Medical decisions of a non-emergency nature (Example: Which doctor the child regularly visits);
  3. Religious upbringing (Example: If the child will be baptized);
  4. Extracurricular activities (Example: If the child wilfcornerstonemfl play soccer).

Many people believe that custody means who a child will live with. While in practice, a child usually lives primarily with the parent who has custody; it is also possible that the child could live primarily with someone other than the custodial parent.

Despite the custodial parent being the decision-making authority in the child’s life, there are some decisions the custodial parent cannot make unilaterally for the child. For example, if there is an agreement or court order in place stating that the other parent has access to the child, they cannot prevent this access.

What are the different types of Custody?

There are two basic types of custody: joint custody, and sole custody. Joint custody occurs when custody is shared between two people, while sole custody occurs when only one person has custody.

Joint Custody

Joint custody means both parents have custody of a child and that they must agree on the major decisions made about their child. If parents disagree on a particular decision, they must find a way to resolve it between themselves.

Sometimes a joint custody agreement or order will give each parent final-decision making authority in certain areas. This is commonly referred to as parallel parenting.

Sole Custody

Sole custody means only one parent has custody of a child, and that he or she is solely responsible for making all the major decisions of the child, even if the other parent disagrees.

Sometimes, even if a parent has sole custody of a child, they may still be required to obtain the input of the other parent when making major decisions.

What is Access?

Access refers to the right of a parent and child to spend time together. A parent who is granted access also has the right to information about their child, such as healthcare, education and the child’s general well being.

What are the different types of Access?

Reasonable Access

Reasonable access allows for access arrangements to be left up to the child’s parents, instead of a specific schedule. In court orders or separation agreements, this is referred to as “reasonable access” or “liberal and generous access”. Reasonable access will only work if both parents are willing to communicate and cooperate with each other.

Fixed or Scheduled Access

In most scenarios, a separation agreement or court order will specify an access schedule. Outside of a regular schedule, most fixed access agreements will also include special provisions for events such as holidays, long weekends and birthdays. It may also specify pick-up times and locations, and the process for changing a scheduled access time.

Supervised Access

Sometimes, it may be necessary for access with a parent to be supervised by another person. Common reasons a judge may order supervised access are:

  • The access parent has a drug or alcohol problem;
  • The access parent has abused the child in the past;
  • The access parent has threatened or attempted to abduct the child from the other parent.

Supervised access often occurs at the supervised access centre nearest to where the child lives. However, sometimes parents will mutually agree on an access supervisor, such as a friend or family member, so the access can occur elsewhere.

Supervised access is only meant to be a temporary measure. It is used with the expectation that eventually the parent and child will be able to have unsupervised access together.

Access in at a Specified Location

Sometimes, as a step between supervised access and reasonable or scheduled access, separation agreements or court orders will specify access is to occur at a specified location. Specified access orders can range from a very precise location where the access can take place, such as a specific shopping mall or public park, to a very general location, such as a public place.

No Access

In rare circumstances, the court will determine it is in the best interests of the child to prevent a parent from having any access.

How does a judge decide on Custody and Access?

The court’s guiding principle for determining custody and access is: what is in the best interests of the child? The Children’s Law Reform Act lists eight specific factors that must be considered when determining what the best interests of a child are. These factors are:

  1. the love, affection and emotional ties between the child and,
    1. each person entitled to or claiming custody of or access to the child,
    2. other members of the child’s family who reside with the child, and
    3. persons involved in the child’s care and upbringing;
  2. the child’s views and preferences, if they can reasonably be ascertained;
  3. the length of time the child has lived in a stable home environment;
  4. the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
  5. the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
  6. the permanence and stability of the family unit with which it is proposed that the child will live;
  7. the ability of each person applying for custody of or access to the child to act as a parent; and
  8. the relationship by blood or through an adoption order between the child and each person who is a party to the application.

A judge is not limited to only these eight factors. Other reasons that are addressed in Ontario law for determining custody include: status quo, past conduct, violence or abuse, and the maximum contact principle.

Status Quo

In order to minimize the disruption on a child’s life, the court attempts to keep a child’s parenting arrangement as similar as possible to what existed before the parents’ separation. Therefore, if one parent was the primary caregiver before the separation, a custody order or agreement will typically reflect this.

Judges very rarely go against the status quo, but will do so if parental alienation is occurring. Parental alienation is when a parent deliberately interferes with or discourages the other parent’s involvement with a child. If there is severe parental alienation, the court may give custody to the non-offending parent, even if a significant status quo existed in the offending parents favour.

One challenge with parental alienation is that it can be difficult to distinguish from parental estrangement. Parental estrangement occurs when a parent causes their own relationship breakdown with a child. The court must therefore carefully consider all the facts of a situation and make an order in the best interests of the child.

Past Conduct

As a general rule, the past conduct of either parent can not be considered when the court makes custody and access decisions. However, the court can take past conduct into consideration if such conduct is relevant to a person’s ability (or lack of ability) to act as a parent.

Violence or Abuse

While not expressly mentioned in the legislation, past violence towards:

  1. a spouse;
  2. the parent of the child a person is claiming custody or access to;
  3. a member of a person’s household; or
  4. any child.

will be considered relevant to making a custody or access order. When determining what parenting arrangements are appropriate when there has been past violence, the Department of Justice’s publication Making Appropriate Parenting Arrangements in Family Violence Cases: Applying the Literature to Identify Promising Practices provides useful guidance.

Maximum Contact Principle

Section 16(10) of the Divorce Act states:

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

This rule is more commonly known as the Maximum Contact Principle, where the court is required to maximize a child’s contact with each parent and minimize disruption to a child’s life.

This rule is often misunderstood to mean that the child should spend exactly 50% of his or her time with each parent. However, this factor is considered alongside all of the other factors mentioned above and therefore does not mean the court’s default order will be 50/50. The most important thing to note about this rule is that the custodial parent has an obligation to facilitate a relationship between their child and an access parent.

Can Custody and Access arrangements be changed?

Almost any order made in a family law dispute can be changed, however, to change any order, there must be a material change in the child’s circumstances. The threshold for whether a material change has occurred is:

  1. a change in the condition, means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child,
  2. which materially affects the child, and
  3. which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. (Gordon v Goertz, [1996] 2 SCR 27, at para 13 [CanLII])

Once a judge has determined a material change in circumstances has occurred, he or she may make a new order based on the current facts.

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