Figuring out how you and your ex-partner will care for your children moving forward is usually the most important issue to resolve upon separation. Whether you were married, common law, or just starting out as a couple, determining who will make decisions for your children’s best interests and where the children will live is always a daunting task. Pamela Biron helps parents understand their options and responsibilities, while helping clients come to the best option that works for meets their needs, and the needs of their children.
Understanding Custody and Access
Unfortunately, the world of modern media often confuses the definition of custody and access in Canada. Custody does not refer to where a child resides; rather, it describes who has decision-making authority with regard to the child’s important life decisions. Custody means a parent has the legal right to make major decisions for and regarding their child. These decisions include those about education, non-emergency medical care, religion, and recreational activities.
Usually, one or both parents will ask to have custody of a child. However, in certain cases, a step-parent, a grandparent, a relative, or another person with a connection to the child could ask for, and get custody of a child.
The most common custody arrangements are sole custody and joint custody. In both cases, the parents need to make best efforts to discuss these major issues and come to a mutual decision. In the case of joint custody, if the parties disagree, neither one can independently or unilaterally make that choice – it must be referred to a court for a judge to make the decision. In the case of sole custody, one parent has the ability to make a decision, but the non-custodial parent has the ability to bring that decision to court if they feel it is one that is not in the best interests of the child.
Custodial arrangements have very little to do with the amount of time children spend with each parent, which is access. Access is normally structured to consider the best interests of the children, taking into consideration each parent’s ability to care for the child, the child’s views and preferences (which are looked at through the scope of the age of the child), each party’s parenting and care plan, the permanence and stability of the family and home of each parent, and many other factors.
Sometimes parents can agree on what custody and access terms will work best for them. In this case, it’s important to get a written agreement that can be relied upon in the future when parties might disagree about their understanding. If parents cannot agree, the matter can be referred to a court where a judge will consider the child’s best interest, and make a child-focused decision.
It’s important to also recognize that custody and access arrangements can change. A child’s needs change over time and these kinds of changes may mean that the existing arrangement might need to be reassessed and revised. Again, this is something that the parents will have to work through, while keeping the child’s interests at the forefront of their minds.
Contact us to understand your options, and what your legal rights and obligations are in the face of a relationship breakdown.