Custody & Access

FAQ

Questions & Answers

What is the difference between custody and parenting responsibilities?

A parent with custody has the right to make decisions concerning the child. A parent with joint custody shares this right in some way with the other parent. Parenting responsibilities is another term used to refer to the decision making component of custody.

What is the difference between access and parenting time?

Both access and parenting time refer to time that a parent spends with their child. The term access is sometimes used to refer to time a child spends with a parent who does not have custody. The term parenting time is sometimes used to set out when a child will live with each parent in joint custody situations, but the term access can also be used in this situation.

We are making a parenting plan. What terms should we use?

There may be several terms that can be used to describe your situation and you can choose the ones you feel best describe it. However, because some terms can mean different things to different people, it is very important to clearly describe how decisions will be made and when the child will be with each parent.

Can one parent decide to move the child to a different city, province or country?

If there is no agreement or order in place, parents who have lived together since the birth of their child have equal rights and responsibilities, meaning that one parent cannot just make unilateral decisions affecting the child. Either parent may wish to consider a court application for custody/access to address this issue if they cannot reach an agreement.

If there is a custody order in place, a move will generally be considered a material change of circumstance that could form the basis for an application to change the custody order. If there is an agreement in place, a parent who disagreed with the move could apply to the court for a custody order that would prevent the child from being moved. A new order could alter the existing order or agreement completely or leave custody as is but either allow or prohibit the move.

A court will consider things like the reasons for the move and whether it will improve the child’s quality of life. The court must then consider the best interests of the child, the maximum contact principle, which states that a child should have as much contact with both parents as is consistent with their best interests, and the willingness of the custodial parent to facilitate such contact.

Some agreements or court orders require that the parent wishing to re-locate with the child provide the other parent with notice of the intended move in order to allow time for a court application to oppose the move.

Very generally speaking, the more time that a parent spends with a child and the more involved they are in their child’s life, the less likely the court is to find that the child would benefit from being moved away from that parent. Again, the reason for the move is an important consideration, as is the distance of the move and its impact on access. This area of the law is very complicated and legal advice may be required to properly address the situation.

My child does not want to visit their other parent. What should I do?

It is important to understand that a parent is expected to facilitate access to the other parent and not simply refuse to provide it because the child is reluctant or refusing to spend time with the other parent, unless there are safety concerns.

There may be many reasons why a child does not want to spend time with the other parent. The matter may be quite complex and no one approach will work for every situation. Counselling to work out why the child does not want to visit can be helpful and may involve the whole family. Sometimes the parents and the children can negotiate changes to the schedule to ease the situation. In some cases it can also help if you treat this like any other thing you expect your children to do, such as going to school and doing chores, and give them the message that this time is important for both the parent and the child.

When can my children decide where they want to live?

Children do not have the right to decide this until they are 18. If a court is asked to decide where a child should live they will consider the child’s wishes. Courts will give more consideration to an older and more mature child’s wishes.

The other parent is turning my children against me. What can I do?

This is a serious issue that can be very difficult to address. Sometimes it can be avoided if both parents are aware of the devastating effect this has on the children. Expectations for how parents will talk about and to each other might be set out in an agreement or even a court order. If this is happening it is important to seek professional help if at all possible. In very extreme cases changes may need to be made to the parenting arrangement.