Child Custody & Child Access

Parenting Time & Decision-Making Responsibility (Formerly Custody & Access)

When parents separate or divorce, child custody, what is now referred to as parenting time and decision-making responsibility, needs to be determined. In essence, child custody refers to the legal and practical responsibility for making decisions about a child’s upbringing and welfare following a separation or divorce and making arrangements for the “parenting-time” of each parent.

Best Interest of the Child

Decisions regarding the custody of the child are determined by assessing what would be in the “best interests of the child”. Taking this approach ensures that the parenting arrangement is “child-focused” and ensures their safety, security, and well-being. Section 16(3) of the Divorce Act and section 24(2) of the Children’s Law Reform Act lists factors to be taken into consideration when assessing the best interest of a child.

Parenting Time

The phrase “parenting time” refers to the time in which each parent has with their child. During this time, the day-to-day decisions made for the child is the authority of the parent who is exercising their parenting time with the child.

A parenting time schedule may be created for parents to provide clarity and certainty, pursuant to section 16.2(1) of the Divorce Act.

Types of Child Custody

There are different types of custody arrangements made between parties:

Sole custody (primary care and decision-making responsibility or authority)

• Joint custody
• Shared custody
• Split custody

Factors Considered in Determining Child Custody

When determining child custody arrangements Courts consider the following various factors, included but not limited to:

• Child’s best interests – including emotional, physical and developmental needs
• Relationship with each parent
• Parents abilities to parent – and meet the needs of the child
• Child’s wishes – depending on their age and maturity
• History of care-giving – the role each parent has played in the child’s upbringing

Custodial Parent

The custodial parent is the parent who essentially has primary care of the child. As the custodial parent you have the power to make important decisions about the care and upbringing of the child. However, in making certain important decisions – the non-custodial parent may be consulted before making a final decision regarding the child.

These important decisions include, but are not limited to:

• Day-to-day decisions regarding the child
• Education – what schools to attend
• Healthcare / medical treatment
• Religion
• Child’s overall upbringing

Non-Custodial Parent (AKA access parent)

The non-custodial parent is the parent who essentially has “access” to the child. This means that you possess access rights to visit your child, (i.e. have parenting time arrangements), however, you are not able to make important decisions regarding the care and upbringing of your child like the custodial parent can. If a disagreement arises between the parents regarding how to proceed with the child, the custodial parent has the power to make a final decision. The non-custodial or access parent may still be consulted when making certain important decisions regarding the child.

As a non-custodial parent, you have the access rights to:

• Visit your child, in accordance with the parenting arrangement made
• Request information from or speak to the custodial parent or any professionals regarding the care of your child (i.e. teachers, doctors, daycare providers, extracurricular activity members like coaches, etc.), regarding the health, education and overall well-being of your child

As an access parent your visits can be supervised or unsupervised depending on the case and the overall best interests of the child. Typically, visits are unsupervised.