In the practice of family law, clients commonly arrive at our office with a misconception about the term custody. Often, we find their understanding of the term stems from popular culture and the definition provided on TV or in movies, where the portrayal of custody is inaccurate or based on the laws the United States rather than Canada.
In the Canadian legal system, the main terms used to define a parenting arrangement post separation or divorce are custody and access. Custody in general refers to the right and responsibility of a parent to make major decisions for his or her child, such as those concerning education, religion, and non-emergent health care. Sole custody means that one parent makes all major decisions for the child. Joint custody means that both parents make major decisions for the child jointly. Under the umbrella of joint custody, the actual parenting schedule can vary widely. It can be that the parents share time with the child equally or there can be one primary parent who the child spends more time with. It varies based on what is in the best interests of the children.
Access is the right of a non-custodial parent to have the child in his or her care. Access encompasses the time that a parent who doesn’t have custody will spend with the child. Depending on the arrangement between the parties or any court orders, access can range from a few hours a week to overnight visits spanning multiple nights. A parent who has access also has the right make inquiries and be given information as to the health, education and welfare of the child, but does not have the power to make major decisions for the child.
The determination as to how custody and access should be arranged is made by reviewing what is in the best interests of the child and not the best interests or wishes of the parent. A court will consider items such as the child’s well-being, their needs, their wishes (if applicable in the circumstances), their upbringing and any plans for the child’s future. The test for what will be in the best interests of the child is fact driven, meaning that it will be based upon the facts of each individual case and the child’s specific circumstances.
Our lawyers in the Toronto office of Hart Legal have experience dealing with custody and access. We can help you navigate tricky family law terms. Contact one our Toronto family lawyers for a free consultation to discuss your custody and access concerns.. We have offices in Downtown Toronto, Burlington, Vaughan and Newmarket, for your convenience