Fact Sheet: Custody and Access

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by Pamela Cross, LLB

When two people who have children separate, sorting out the arrangements for the children is often the most difficult issue.

This is especially true when a woman leaves an abusive partner, because it is not uncommon for an abusive man to use the children as a way to continue to have power and control over the woman and/or to get her to come back.

Threats to take and not return the children are powerful and effective, and the laws do not offer women enough protection or assistance.

In Canada, both parents have an equal legal right to the custody of their children.  Neither parent is permitted by law to remove the children from the other parent unless there is an agreement or a court order giving permission.

What are the laws about custody?

Custody and access decisions are made using one of two laws.  Both require judges to use a test called the best interests of the child test when making custody decisions.

The federal Divorce Act applies to married couples seeking a divorce who wish to also sort out custody and access.  This law does not provide detailed criteria for how to apply the best interests of the child test and requires the custodial parent to encourage "maximum contact" with the access parent.  This can be very problematic for women whose partners are abusive.

The provincial Children's Law Reform Act applies to anyone whether they were married to the child's other parent, lived common law with him or never lived with him.  It provides detailed criteria for the best interests of the child test, including a requirement that family violence be considered by judges when they make custody and access orders.

What do all the different terms mean?

There are a number of terms that are commonly used in custody and access cases.

Sole custody means that one parent has full legal responsibility for decisions related to the child.  The other parent will almost always have access.

Joint custody is the term used when the parents share the legal responsibility for decisions related to the child, regardless of how the child's time with each of them is shared.

Shared custody or shared parenting generally refers to an arrangement in which the child spends roughly equal amounts of time with both parents. It does not specify who has decision making responsibility.

Primary residence is the parent's home where the child spends most of her time.

Parenting plan is the term used to describe the plan made by each parent setting out how they intend to raise the child post-separation.  It could include information about proposed access arrangements, communication strategies, child care, education, recreational activities and religious upbringing.

Access is the time the parent who does not have primary residence spends with the child.

Supervised access is the arrangement made for access when it is not appropriate for the access parent to be alone with the child.  Access may be supervised if the access parent has threatened to take the child out of the country, has a serious drug or alcohol problem, or has abused the child.  Supervision may be done informally by a family member or friend, or might be formal and take place at a Supervised Access Centre.

Supervised access exchanges can be put in place when it is not safe for the mother to be alone with the father when they are exchanging the children.  It can be informal (for example, the parents could exchange the children in a public place, or the father could pick them up from and return them to their school or day care centre) or formal (at a Supervised Access Centre.)

What is the "best interests of the child" test?

The best interests of the child test is the only test used by courts to determine what custody and access arrangements should be made for children when their parents separate (or if the parents have never lived together). 

This test sets out a number of criteria to be considered by the court. All the criteria must be considered, but they will be weighted differently depending on the facts and circumstances of the specific case.

The court looks as such things as:

  • the ties between the child and the people applying for custody as well as other important people in the child's life
  • the child's views and preferences where it is possible to do so
  • the stability of the child's present living situation
  • the ability of each person to provide for the child
  • plans made by each person for the child's care
  • stability of the family where it is proposed the child will live
  • the ability of each person to act as a parent
  • the blood or adoptive relationship between the child and each person applying for custod

Will the court take into account abuse by my partner?

Yes.  When the court is assessing the ability of each person to act as a parent, it must consider whether the person has ever committed violence or abuse against his spouse, the parent of the child (if that person is not a spouse), a member of the household or any child.

There do not have to be criminal charges or convictions for a woman to raise the issue of violence or abuse in her custody claim, but if there have been, she should make sure to include that information in her affidavit.

These provisions explicitly exempt any acts done in self-defence or to protect another person, which is important because of the trend in recent years to counter-charge women in violence against women cases.

What is an affidavit?

The affidavit is one of the most important pieces of evidence in a custody and access case. 

It is a legal document that a person swears, in writing and in front of a witness, is the truth. It is the way most evidence in a family court case is provided to the court.  Both parents, as well as any other people with important information, will prepare affidavits to explain their stories to the judge.

A woman who wants to establish evidence of abuse will do so with her affidavit.  She should set out the evidence as clearly as possible, with as much detail as she can.

She may also want to get affidavits from other people who have evidence about the abuse - for example, day care providers or teachers, a family doctor or a religious leader.

How is a custody order enforced?

A custody and access order should say explicitly that the police are responsible for enforcing it.  If this clause does not appear, the police may be unable to help if the children are not returned on time or there is any other breach of the order.

This Fact Sheet contains general legal information only.  It is not a legal document, nor is it a replacement for legal advice.  Anyone in a situation involving family, immigration or refugee law is strongly urged to meet with a lawyer to understand fully their rights and responsibilities, the legal options available to them and appropriate legal processes.  A lawyer can interpret the law and provide advice based on the personal facts and information in the specific case.

For information about finding a lawyer in your community, contact Legal Aid Ontario at 1 800 668 8258 or 417 979 1446.

You can also visit Legal Aid Ontario online at www.legalaid.on.ca