Custody and Access

What is custody and what does having custody mean?

Custody is a bundle of rights and responsibilities.

A person who is granted custody of a child is permanently responsible for that child on a daily basis and responsible for making both daily and long-term decisions on the child’s behalf. These decisions include decisions about dental care, health care and education.

Under the Children’s Law Reform Act (CLRA) a person who has custody of a child has “all the rights and responsibility of a parent and must exercise rights and responsibilities in the best interest of the child.”

What is access and what does having access mean?

Access means the having the right to visit with a child either in a supervised setting or an unsupervised setting.

If a person has supervised access, access will take place either at an access centre or in the presence of the other parent, grandparent or a third party approved of by either the Court or the other parent. If a person has unsupervised access that person has the right to visit with the child without anyone supervising.

A person granted access has the right to visit with and be kept informed about a child’s health, education and religious choices, and the child’s general welfare.

Who will get custody after we separate?

The question of who gets custody is determined by what is in the “best interest of the child.”

Determining what is in the best interest of a child is based upon a long list of factors and includes the following:

  • Love, affection and emotional ties between the child and each parent
  • The child’s views and preferences
  • Length of time the child has lived in a stable home environment
  • Ability of each parent to provide necessities of life
  • Ability and willingness of each parent to provide the child with guidance and education
  • Plan proposed by each parent for the care and upbringing of the child
  • The parenting abilities of each parent
  • Stability of the family unit

When deciding who gets custody, a judge will make their decision based on two factors: what is ultimately in the best interest of the child and any arrangements that were made for the child’s care immediately after the separation.

Does the Court get to decide who has custody?

No. Couples who separate can make a private arrangement known as a Parenting Plan.

A Parenting Plan is a document drawn up by the separating couple that clarifies the role each parent plays in making decisions about the child. The following is a list of some issues often addressed in parenting plans:

  • Which parent is going to make day-to-day decisions about the children
  • Which parent is going to choose and arrange childcare as well as any counseling the child or children may need
  • Which parent is going to decide the child or children’s schooling, religious upbringing and health care
  • How the parents will share the child or children during school holidays
  • Which parent will have the right to apply for and hold the child or children’s passports
  • Which parent will have access to the children’s school and medical records

It is best to have a Parenting Plan when separating because the courts defer to the private arrangements parents make about what is in the best interest of the child.

If parents don’t agree on custody can I get a temporary custody order?

Yes. A parent may obtain a temporary order for custody and access under section 16(2) of the Divorce Act or section 28 of the Children’s Law Reform Act pending a final determination of custody.

When deciding on temporary custody, a court will favour the parent who the child (or children) is living with at the present time.

Can I get a restraining order against the other parent?

Yes. If one of the parents, the child, or multiple children are in danger because the other parent has made threats or has a history of violence, that parent can ask a judge for a restraining order that is enforceable by the police.

For more information, please contact:

Shawyer Family Law
504-2300 Dufferin Street
Toronto, ON  M6A 3B2
416-398-4044 ext 25
robert@shawyerlaw.ca