Frequently Asked Questions - PARENTING ARRANGEMENTS (Custody and Access)

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Please note that this is not a legal text and will not give you legal advice. These "Frequently Asked Questions" (FAQs) will give you general legal information. To get legal advice regarding a family law issue, you would have to speak with a lawyer who practices family law.

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Parenting Arrangements (Custody and Access)

1. What does "parenting arrangements" mean?
   
   
2. Does the Divorce Act favour either parent or any particular type of parenting arrangement?
   
   
3. What factors do judges consider when deciding on parenting arrangements in a child's best interests?
   
   
4. What is the difference between legal custody and physical custody?
   
   
5. What is joint custody?
   
   
6. What is shared custody?
   
   
7. Is it possible to have both joint custody and shared custody of a child?
   
   
8. What is sole custody?
   
   
9. Can I have joint custody if the child lives with the other parent?
   
   
10. What issues should I and the other parent consider when deciding on the best parenting arrangements for our child following a separation or divorce?
    
    
11. What help is available to advise us on parenting arrangements that would be in our children's best interests?
    
    
12. Can my child decide which parent to live with?
    
    
13. Can one parent deny the other parent access to a child if the other parent does not pay child support?
    
    
14. My child's other parent has been violent towards me. Do I have to let them see the child?
    
    
15. When parenting arrangements are set out in a court order, what are my options if the other parent abuses or neglects my child?
    
    
16. What can I do if the other parent won't let me see my child?
    
    
17. What can I do if the other parent refuses to take the child when it is their turn?
    
    
18. What can I do if the other parent abducts the child?
    
    
19. How can I enforce parenting arrangements if the other parent has taken my child to live in another country?
    
    
20. Do I need consent from the other parent if I want to take my child on a trip to another country?
    
    
21. Do I need consent from the other parent if I want to move away with the child?
    
    
22. Do I have to let the other parent know about my plans to move if he or she has been violent towards me and I am concerned about safety?
    
    
23. As a grandparent, how can I get access to my grandchildren when their parents separate or divorce?
    
    
24. Do I have to use the terms "custody" and "access" when deciding on parenting arrangements?
    
    

1. What does "parenting arrangements" mean?

"Parenting arrangements" are the arrangements parents make for the care of their children after a separation or divorce. This includes arrangements about where the children will live, and who will be responsible for making major decisions about issues such as where the children will go to school, their religious education, their medical care, their after school activities and so on. Parenting arrangements are referred to as "custody" and "access" in the Divorce Act, but most people simply say "parenting arrangements" when discussing these issues.

2. Does the Divorce Act favour either parent or any particular type of parenting arrangement?

No. The Divorce Act is gender neutral and does not favour any particular parenting arrangement.

Parents can agree to any type of parenting arrangement. When parents make an arrangement for their children, they should focus on what is in the best interests of their children.

When parents cannot agree and a judge must make the decision, the Divorce Act requires that the judge's decision about parenting arrangements must be based on the best interests of the child. The judge will look at all of the circumstances of the child and the family to determine what is in the child's interests in that particular situation.

3. What factors do judges consider when deciding on parenting arrangements in a child's best interests?

The judge will consider such factors such as:

• the relationship that the child has with each parent;
• care arrangements before the separation
• the child's age and needs;
• the child's views and preferences;
• the child's relationship with siblings, grandparents and other important people in the child's life;
• parenting ability;
• the ability of the parents to communicate and co-operate with each other on issues concerning the child;
• any family violence, including its impact on parenting abilities or the child's well-being.

The judge will also apply the principle that a child should have as much contact with each parent as is in the child's best interest. In applying this principle, the court will consider the willingness of each parent to take on parental responsibilities and to support the child's relationship with the other parent. A parent's past conduct may not be taken into account unless it affects their ability to act as a parent to the child.

4. What is the difference between legal custody and physical custody?

Physical custody refers to where the child lives. Legal custody usually refers to the responsibility for making major decisions about the child, such as decisions about education, religion and health care.

5. What is joint custody?

Joint custody means that both parents have legal custody of the child and make major decisions about the child together.

A variety of living arrangements are possible for the child when the parents have joint custody. For example, the child may live mostly with one parent, while both parents make decisions jointly about important issues such as health, education and religion.

6. What is shared custody?

Shared custody refers to situations where a child lives at least 40 percent of the time with each parent. For example, the child may live 40 percent of the time with one parent and 60 percent of the time with the other, or 50 percent of the time with each parent. These would both be considered shared custody arrangements.

7. Is it possible to have both joint custody and shared custody of a child?

Yes. In such a situation, the child would live at least 40 percent of the time with each parent, and the parents would make important decisions about the child jointly.

8. What is sole custody?

Sole custody means that the child lives mainly with one parent, who also makes the major decisions about matters such as the child's education, religion and health care.

When one parent has sole custody, the other parent normally has access. A parent with an order for access under the Divorce Act is entitled to spend time with the child. Unless the court orders otherwise, the parent is also entitled to ask for and be given information about the health, education and welfare of the child.

9. Can I have joint custody if the child lives with the other parent?

Yes. Even if the child lives mostly with the other parent, you can make major decisions about the child jointly if you both agree or if the court decides that this type of parenting arrangement would be in the child's best interests.

In determining whether this is the right option in your circumstances, you should keep in mind that joint custody works best when parents are able to communicate and co-operate with one another on issues related to the children.

10. What issues should I and the other parent consider when deciding on the best parenting arrangements for our child following a separation or divorce?

The most important issue to consider is what parenting arrangement will be best for their children. There is no one arrangement that will work for all children and families, so you need to give this issue careful consideration.

Following are some examples of the types of factors that a court would consider in determining what parenting arrangement would be in the best interests of the child:

• the relationship that the child has with each parent;
• care arrangements before the separation;
• the child's age and needs;
• the child's views and preferences;
• the child's relationship with siblings, grandparents and other important people in the child's life;
• parenting ability;
• the ability of the parents to communicate and co-operate with each other on issues concerning the child;
• any family violence, including its impact on parenting abilities or the child's well-being.

The judge would also apply the principle that a child should have as much contact with each parent as is in the child's best interest. In applying this principle, the court would consider the willingness of each parent to support the child's relationship with the other parent. The court would not consider a parent's past conduct unless it would affect the parent's ability to act as a parent.

Each family circumstance is unique and so is each child. It is important for parents to consider what will work best for the children in the specific situation.

11. What help is available to advise us on parenting arrangements that would be in our children's best interests?

Your province or territory may have family justice services such as parenting education that you will find useful. Some of these services can be found on the Department of Justice website, in the Inventory of Government-Based Family Justice Services. You may find other useful services on the website of your provincial or territorial government. Some of these services may also be offered by private practitioners. Your child's paediatrician or teacher may also have some useful advice since they know your child.

12. Can my child decide which parent to live with?

Children are directly affected by decisions about parenting arrangements so it is important to listen to their views about how their parents should take care of them following a separation or divorce.

There is no fixed age at which children are entitled to determine where they will live or the particular access arrangement. Generally, more weight is given to their views as they age, particularly the views of teenagers.

When judges make decisions about parenting arrangements, one of the factors they will consider is the child's views and preferences.

As parents, you may agree with your child's preferences, or you and the other parent may decide that another parenting arrangement would be better for your child.

In the end, however, parents and judges must make the decision they consider to be in the child's best interests.

13. Can one parent deny the other parent access to a child if the other parent does not pay child support?

Child support and child access are two separate issues and child support is not a payment for access.

Even if a parent is not receiving child support from the other parent, that is not a reason to limit access. Children need love, guidance and support from both parents, and having a relationship with both parents is in the child's best interests, except in rare circumstances. It does not help children if they do not have financial support and, in addition, lose a relationship with one of their parents.

There are maintenance enforcement programs in each province and territory.in Canada and they can help parents obtain the child support payments.

14. My child's other parent has been violent towards me. Do I have to let them see the child?

If you have been a victim of violence, it is important to notify the police.

If you are concerned that you or your child would be in danger if visits with the other parent are allowed, it is strongly recommended that you seek legal advice to discuss options to protect yourself and the child.

Under the Divorce Act, a judge must make the parenting arrangement that they believe is in the best interests of the child. Depending on the facts of the case, the judge could order:

• Specified access – the times and places for access visits are specifically set out in the order;
• Supervised exchange – the pick-up and drop-off of the child takes place in the presence of third parties, so that the parents are not alone with one another;
• Supervised access – the access visit between a parent and child takes place in the presence of a third party;
• No contact between a parent and child, although this is rare.

You can find more information about family violence and leaving an abusive relationship in the publication called Abuse is Wrong.

15. When parenting arrangements are set out in a court order, what are my options if the other parent abuses or neglects my child?

If you suspect that your child is being abused, you should call the police or the child protection services in your province or territory immediately. You should also contact a family law lawyer to get advice about the options that are available to protect the child.

A judge may change parenting arrangements set out in an order made under the Divorce Act if they determine that it is in the best interests of the child. For example, they may order that the alleged abuser's time with the child be supervised.

16. What can I do if the other parent won't let me see my child?

If you are having problems exercising access to your child, you should always try to resolve the issue before going to court by discussing it with the other parent. Try to get to the root of the problem. There may be a misunderstanding or there may be genuine concerns on the part of the other parent that you can address together.

Remember – do not have these discussions in front of the child. It is important that children not be exposed to conflict or feel caught in the middle.

If you cannot resolve the problem by talking to the other parent, there may be family justice services such as parent education or mediation that can help you. Some government-based family justice services are listed on the Department of Justice website. You may find others on the website of your provincial or territorial Ministry of Justice.

You may also wish to consult a family law lawyer about what you can do to solve the problem.

17. What can I do if the other parent refuses to take the child when it is their turn?

If the other parent is not spending time with the child as set out in a court order or agreement, you should always try to resolve the issue first by discussing it with the other parent. Try to get to the root of the problem. There may be a misunderstanding or there may be genuine concerns on the part of the other parent that you can address together.

Remember – do not have these discussions in front of the child. It is important that children not be exposed to conflict or feel caught in the middle.

If you cannot resolve the problem by talking to the other parent, there may be family justice services such as parent education or mediation that can help you. Some government-based family justice services are listed on the Department of Justice website. You may find others on the website of your provincial or territorial Ministry of Justice.

You may also wish to consult a family law lawyer about what you can do to solve the problem.

Courts will generally not require an unwilling parent to spend time with a child, as this may not be in the best interests of the child. There may be other options available in your situation, and a family law lawyer can help you determine what these options may be.

18. What can I do if the other parent abducts the child?

If your child has been abducted by anyone, including the other parent, the first thing to do is call the police. The sooner the police can begin to search and investigate, the better.

You should also contact a family law lawyer. Depending on your particular case, there may be criminal and/or civil (non-criminal) responses to your situation.

If you suspect that your child has been or may be taken out of Canada, you should immediately ask the local police to contact the National Missing Children Services of the Royal Canadian Mounted Police (RCMP).

Also contact Consular Services of the Department of Foreign Affairs and International Trade (DFAIT). They can be contacted 24 hours a day, seven days a week, at 1-800-387-3124 or 1-800-267-6788 (in Canada) or 613-996-8885. These emergency numbers will put you in contact with a case officer, who will remain in charge of your case. When you call, you should have available the information detailed in the section Information and Document Checklist on DFAIT's website. The DFAIT website also contains information about other types of assistance they can provide to you.

If your child is a Canadian citizen, you can call Passport Canada toll-free at 1-800-567-6868 or TTY services at 1-866-255-7655 and ask them to put the child's name on a list so that you can be called if anyone tries to get a passport for them. If your child has citizenship in another country, contact that embassy or consulate to ask them to refuse a passport for your child.

19. How can I enforce parenting arrangements if the other parent has taken my child to live in another country?

The extent to which a parenting arrangement made in Canada is enforceable in another country will depend on the rules in the other country and the particular facts of your case. If you have questions about getting your court order enforced in another country, you should seek legal advice.

20. Do I need consent from the other parent if I want to take my child on a trip to another country?

It is a good idea to let the other parent know of your plans well in advance of the trip. This will allow you to discuss the issue with them and ensure that they do not have any concerns.

You usually need the signature of the other parent to obtain a passport for the child. More information may be found on Passport Canada's website.

If your Divorce Act order also requires the other parent's consent for you to take the child outside of Canada, then you must obtain this consent before you leave. It is best to get this consent in writing.

Even if your order does not require this consent, the laws of the country that you are visiting may require the other parent's consent, as well as the consent of any other person who may have the legal authority to make major decisions about that child (for example, anyone with custody).

For more information about consent letters when travelling abroad with children, see the Foreign Affairs and International Trade website.

21. Do I need consent from the other parent if I want to move away with the child?

Unless your court order says otherwise, generally you will need to obtain the consent of the other parent or approval from the court to move away with the child.

You should generally notify the other parent well in advance about your plans to move. Some court orders say how much notice you must give the other parent. For example, your order might say that you must tell the other parent at least 60 days before the proposed move. If such a requirement exists in your court order, it is mandatory.

Even if your court order does not specifically require notice, it is a good idea to inform the other parent well before the proposed move. Talking to the other parent will give you a chance to explain why you wish to move, the benefits to you and the child, and how you would propose to change the parenting arrangement to maintain the relationship between the child and the other parent. This will also allow the other parent to give you their perspective, particularly on how the proposed move might affect their relationship with the child.

Talking to the other parent may allow you to come to an agreement about the issues. In cases where you and the other parent agree that the move should take place, it is a good idea to have the new parenting arrangement set out in a new order.

These can be very complex situations and it is recommended that you consult a family law lawyer to obtain advice based on your particular circumstances.

22. Do I have to let the other parent know about my plans to move if he or she has been violent towards me and I am concerned about safety?

If you have a court order that deals with custody or access, you will need to contact a family law lawyer to obtain advice about how to proceed based on the specific wording of your order and the facts of your case.

You can find more information about family violence and leaving an abusive relationship in the publication called Abuse is Wrong.

23. As a grandparent, how can I get access to my grandchildren when their parents separate or divorce?

Try to establish or maintain a positive relationship with the child's parent or parents.

If you are having conflict with either parent, you should always try to resolve the issue first by discussing it with them. Try to get to the source of the problem. There may be a misunderstanding or the parent may have genuine concerns that you can deal with together.

Remember – do not have these discussions in front of the child. It is important that children not be exposed to conflict or feel caught in the middle. Also, avoid criticizing either parent in front of the child, and do not use the child as a messenger between parents.

If you cannot resolve the problem by talking to the parents, there may be family justice services such as mediation that can help you. Some services are listed in the Inventory of Government-Based Family Justice Services. You might find other useful services on the website of your provincial or territorial government.

If you cannot come to an agreement with the parent(s), a court may give you permission to apply for access under the Divorce Act. Since you are not one of the divorcing parents, you would need permission of the court to make your application. A family law lawyer can provide you with advice on the specific procedures and principles that would apply in your case.

24. Do I have to use the terms "custody" and "access" when deciding on parenting arrangements?

The Divorce Act uses these terms, but this does not limit the type of parenting arrangements that may be included in written agreements or legal documents. Other words or descriptions can also be used to set out parenting roles and responsibilities.