FAMILY LAW

Parenting Orders (Custody and Access)

When two parents are living together in a common law relationship or are legally married, custody of a child is usually not an issue. However, the relationship between parents may break down resulting in separation or divorce. During this time, a decision must be made about parenting arrangements for the child of the relationship. In some cases, parents of a child never lived together as a couple but will still need to decide on parenting arrangements.

Parenting (sometimes referred to in the legal system as “custody”) is a legal term that refers to decision making and responsibility for a child. A person who is primarily responsible for parenting of a child has the responsibility for making important decisions about a child’s life, such as education, health care and religious practice. There are different types of custody arrangements. Making decisions about child custody can prove to be difficult for some parents. It is important for parents to consult with a lawyer to ensure they are informed about their rights and obligations.

Parenting time (formerly called access) is often referred to as visitation and is the right of a non-primary parent (or other important persons such as a grandparent) to visit and spend time with the child(ren) on a regular basis. Access also usually includes the right to ask questions about the child and be given information about health, welfare, and education.

Do Parents Have to go to Court for Parenting Time/Custody and Access?

No. Parents can agree to parenting/custody and access arrangements themselves without going to court. This may include what times each parent will parent the child, how decisions about medical, educational, and extracurricular things will be made, among other items.

If parents cannot agree together, they can also use a mediator to help try and resolve some of the parenting issues. However, if parents cannot agree to parenting terms by themselves, they may have to go to court to resolve their issues.

Who Can Apply For A Parenting Order?

Parents of a child are entitled to apply to court for such matters. However, parents are not the only people who can make an application for a parenting order. For example, grandparents have the right to make an application for custody or access, according to the Children’s Law Act. Other people who are not parents may also have the right to make a custody or access application if they are a family member or if they have stood in the place of a parent to help take care of a child. Applications for custody and access may be started under the Divorce Act (if divorce proceedings are involved) or under the Children’s Law Act.

If a non-parent is considering making a court application for custody or access to a child, a lawyer should be consulted.

How are Parenting Orders Decided in Court?

During a court hearing, the judge will hear information about the situation and decide based on the best interests of the child. The best interests of the child is the first and most important consideration that a court will consider in determining parenting issues. Some things that a court will consider in deciding the best interests of a child include:

The love, affection, and emotional ties between the child and the person applying for parenting time;
The people involved in the upbringing of the child;
The length of time the child has lived in a stable home environment;
Proposed plans for the care and upbringing of the child;
And other relevant factors.

Do Courts Consider What a Child Wants in Parenting and Custody and Access Applications?

During a court hearing a judge may seek the views and preferences of a child when deciding who will have parenting time with a child and how. There is no specific age when a judge will consult or not consult with a child. If a child is at a certain level of maturity and can make rational decisions about their own care and upbringing, it is likely that a judge will seek the child’s views and preferences. However, there is no guarantee that a judge will seek what a child prefers.

What Kind of Parenting/Custody and Access Arrangements Can be Made?

There are generally two types of parenting/custody arrangements: sole and joint custody.

Sole parenting/custody is when the child lives primarily with one parent who makes all decisions regarding the child. A sole custody arrangement may still give some parenting time to the other parent.

Joint parenting/custody is when both parents are involved in making decisions about a child together. Joint custody does not necessarily mean a child will live with both parents equally.

Additionally, a parenting plan may provide for general parenting time (decided by both parents together); specific types of parenting time (such as weekends, birthdays, and other special occasions); or supervised parenting time (where a certain person must be present during a parent’s parenting time). For an example of a parenting plan, please see the following example document.