Child Custody and Access

When parties start a proceeding for custody and access, a common misconception is what those terms mean in a legal context. For example, custody does not include where the child resides. Instead, custody means the rights and responsibility of a parent to make any major decisions for the child. Major decisions can concern the decision around the child’s education, religion and non-emergency health care.

There are two types of custody arrangements, sole custody and joint custody. Sole custody means that only one parent makes all the major decisions, whereas joint custody means that both parents make the major decision for the child jointly. Joint custody can take on many different forms, which is why it is beneficial to talk to a lawyer.

On the other hand, access refers to the time the child has with the non-custodial parent. Access includes the right of the non-custodial parent to make inquires about the child and be provided with that information. This can include information about the child’s education, health, and welfare. Day-to-day decisions are made by the parent who is caring for the child at that point in time. 

Once a couple separates and one of the spouses moves out of the marital home, the spouse who continues to live with and care for the child or children has de facto custody, and the other spouse is entitled to access. The de facto custody arrangement will be considered the status quo for the child or children and a critical factor that courts will consider when ruling on applications.

As a result of the misconception of custody and access, effective on March 1, 2021, under the Divorce Act and Children’s Law Reform Act, the terms custody and access will be changed and replaced, parenting time (access) and decision-making responsibility (custody). Secondly, in addition to the changes coming into place in March 2021, a new order will be created, called a parenting order. The parenting order will include both decision-making responsibility (custody) and parenting time (access) in one. Finally, another change that came into effect in March 2021 is the Divorce Act will impose new duties on the spouses/parties that mandate them to attempt to resolve these issues through an alternative dispute resolution process, where it is appropriate to do so. Here the courts are encouraging the parties to try and come to an agreement through mediation and negotiation. Not only will this help keep the costs of the proceedings low it also helps create a more harmonious environment for the family and children when dealing with these sensitive issues. 

Suppose the parties cannot come to an agreement about parenting time (access) and decision-making responsibility (custody). In that case, the court will decide these matters based on the “best interest of the child” test. This test applied to matter brought under both the Divorce Act and the Children’s Law Reform Act. Some of the factors the court consider are: 

  • The child’s physical well-being; 
  • The child’s emotional well-being and security; 
  • The applicant’s plan for the child’s education and maintenance;
  • The child’s financial needs. 
  • The child’s religious and ethical upbringing; 
  • The child’s wishes (dependant on the child’s age);
  • The bonding between a child and the child’s caregivers, etc. 

The driving factor behind this test is the child’s needs and not the individual parent’s rights. 

Furthermore, the Divorce Act imposes a duty on the parties, and the person who has parenting time, decision-making responsibility to exercise those duties in a manner that is in the best interest of the child and protect the child from conflicts that arise as a result of any proceeding between the parties.

Why Choose Us?

At Bickhram Litigation, we understand that custody and access disputes are challenging and emotionally draining. Our lawyers have a great deal of experience helping clients bring and litigate these matters. We provide sound legal advice and the support you need to make this challenging time a little less strenuous for our clients and their families. For more information on Custody and Access proceedings and litigation, please contact us for a complimentary consultation.



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