Custody and access disputes are frequently the most stressful and complicated aspect of any separation, be it between married spouses, common-law spouses or parents who have never lived together. The law regarding custody and access disputes is governed by either the Divorce Act or the Family Law Act. There is really no appreciable difference between the two Acts with respect to the determination of custody and access disputes.
The guiding principal in deciding who should have custody of or access to a child is what is in the best interests of the child and not what a parent or parents want. In determining the issues of custody and access, a Court will frequently consider which party was the child’s primary caregiver, the particular plan of care that a parent had following separation and the willingness of a custodial parent to allow or facilitate access to the other parent. There is a presumption that a child should have as much contact as possible with each parent because it is assumed that a child will benefit by maximum contact with each parent. Either party may challenge that presumption.
Parties (parents) can agree to, or a Court can order, various custody and access arrangements ranging from:
- joint custody with each party having the child one-half of the time;
- joint custody with the primary residence to one party;
- sole custody with access to the other party; and
- sole custody to one parent with no access to the other because access would not be in the best interests of a child.
There appears to be a presumption by the Courts that the parties should have joint custody with the primary residence with one party because that is in the best interests of the child. A Court will decline to make an order for joint custody where it believes, among other things, that the parties cannot jointly parent a child. Joint custody generally means shared decision making and not necessarily equal time with the child.
Further, other issues will follow a custody and access order or agreement. These include, but are not limited to parents consulting with the other to keep themselves informed about the health and welfare of a child. They may also include an obligation by the custodial parent or the parent with primary care of the child to assist the other parent in obtaining information about the child directly from the child’s caregivers, including teachers, doctors and other health care professionals.