Family Primer Series – Custody and Access

The most difficult and emotional of family issues is often that of child custody and access. Emotion often plays a large party in a party’s positioning over custody and access issues – even more so than with other family law issues. This emotion-driven approach towards questions of custody and access often results in mistakes causing serious damage to a party’s legal position and to their children’s well-being. Even more so than with other family law issues, it is essential to get a lawyer involved as early as possible regarding contentious custody and access issues.

The factor governing all child custody and access decisions is the “best interests of the child”, but the meaning of this simple phrase can be elusive. While the judge has significant discretion in deciding on custody and access issues, the best interests of the child is also a question that is also influenced by previously reported decision. However, before getting further into the factors that influence the Court’s assessment of the “best interest of the child”, it is important to define some key terms.

‘Custody’ relates to the issue of which person(s) shall be responsible for making decisions respecting the children. A child’s religious upbringing, education, health care decisions, and extracurricular involvement are ordinarily determined by the custodial parent(s). Custody is a separate issue from where the children should reside; for example, parents can have joint custody of their children while their children reside primarily with their mother. While parents are often willing to agree to a joint custody arrangement through negotiation, custody can come into dispute where a child’s parents cannot effectively work together to resolve their day-to-day parenting issues.

The Supreme Court of Canada has ruled that the custodial parent does not generally have a unilateral right to move the Child where a move would substantially interfere with the Child’s access to the access parent. The test as to whether a move can be contested is whether the move constitutes a material change in circumstances for the Child. Mobility issues can be very complex and can lead to some of the most high-conflict custody and access cases, since mobility issues are often seen as ‘all-or-nothing’. If you have children and have separated from your spouse and you or your spouse is contemplating a move, you should contact a lawyer immediately to learn about your options going forward.

Parties and lawyers are often encouraged to be innovative to resolve custody issues. Decision-making responsibility can even be divided part-in-parcel between a child’s parents. For example, one parent might have the final say on any decisions regarding religious education, while the other is responsible deciding which school a child can attend. All families are unique, and it is important that both parents can work together to get to the best individualized outcome for that family’s children.

‘Access’ refers to the time that the non-residing parent is able to parent their children. Access can be extensive and highly-involved or limited and supervised, depending on the children’s needs.

‘Shared parenting’ refers to a parenting arrangement where both parents parent the children for approximately the same amount of time (usually between 40% and 60% of the time). Some key factors to acquiring a shared parenting order include the parents’ capacity to effectively communicate with each other, the parents’ ability to work together to meet their children’s needs, and whether the parents live close enough to each other for shared parenting to be practical. If two parents cannot work together effectively, an order for shared parenting may not be appropriate. Shared parenting is also significant from a child support standpoint, as a parent’s support obligation can be substantially reduced where the payor has been determined to parent the children for over 40% of the time in a calendar year. ‘Shared custody’ is simply a bastardization of ‘shared parenting’ – ultimately these terms refer to the same thing.

There are three types of parenting arrangements in the context of a larger family case: parenting agreements, interim orders, and final orders.

A ‘parenting agreement’ is effectively an agreement between parents regarding the parenting of their children. Though parenting agreements do not carry the contempt consequences that go along with court order and are always subject to review by the Courts, parenting agreements carry a great deal of weight if challenged. This is especially true if the agreement was duly executed by both parties with the benefit of legal advice on both sides. The Parties can make a motion to the Court to turn a ‘parenting agreement’ into either an interim or a final order of the court respecting parenting, to ensure that the parties’ agreement is enforceable by either party.

An ‘interim parenting arrangement’ is one that is in place during the life of a family matter. At a hearing, the interim parenting arrangement is usually determined by relying heavily on the status quo, which can make interim arrangements difficult to change absent some danger to the child(ren). Interim parenting arrangements are extremely important when discussing the progress of a family file in practice – often the ‘final order’ will follow from the status quo established by the interim parenting arrangement.

A final order is one that occurs at the conclusion of a custody and access matter. While the Court is not bound to accept the status quo when making a final order, the status quo plays a large role in determining the final custody and access arrangement. For example, a parent who has interim primary residence with the children will probably spend more time with them, be more involved in their day-to-day activities and tasks, and will be more in touch with their everyday needs than even an exemplary access parent. Because of this, a final arrangement can be difficult to change. In legal terms, a party is required to show a material change in circumstance relating to the Children from the previous order before the Court will consider varying a final order.

The term status quo refers to the current state of affairs. In the context of a parenting arrangement, this refers to the practical, day-to-day state of affairs for a child in a family court action. In the family law context, it takes some time (several months at least) for a parent to establish a new status quo. The general idea behind this is that the other parent should have a reasonable opportunity to challenge a spouse’s unilateral attempt to change the status quo or to create a new status quo without a formal or informal parenting agreement or an order of the Court.

A lawyer’s opinion on custody and access issues usually stems from a large number of sources, including the body of case law, their assessment of the parties’ credibility and post-separation behaviour, the status quo, any issues with the children’s individual needs, and the wishes of the Children. Each parent’s role in the child’s life is essential to custody/access determinations, as are objective factors such as changes in a child’s grades, psychological or physiological changes for the child, and the presence of social and family supports. A child’s wishes are also a relevant factor to consider, and while a child’s wishes become a more significant factor as children age, it is never determinative. There are many other factors that impact upon custody and access determinations in the case law that I don’t have space to get into here. However, the only hard and fast rule in a custody and access determination is that the best interests of the child governs.

Determining the best interests of the child is left intentionally open to the discretion of the sitting judge, and is determined based on affidavit evidence. An affidavit is a written statement usually prepared by a lawyer and sworn by a party. While swearing a false affidavit can invite criminal perjury charges the Crown rarely, if ever, pursues perjury charges in the context of a family matter. Canadian courts have also heavily restricted the right of a party in a family case to pursue the other for defamation. Because of this, custody and access disputes have a tendency to quickly devolve into mud-slinging. Predicting the outcome of child custody and access matters can be quite difficult, especially in high-conflict cases.

It is extremely important in the custody and access context especially to get legal advice as soon as possible. If you are involved in a custody and access dispute, you should contact a lawyer immediately.

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