In the context of Family Law, the terms “custody” and “visitation” (also called “access”) often become confused with each other. Custody is the right to make major life decisions for the child, including decisions about the child’s education, religion, and health care. “Custody” does not necessarily equate to the amount of time each parent spends with the child. “Access” is the amount of time the child spends with the respective parent. Recently with the amendments to the Divorce Act, the terms custody and access will be replaced with decision-making and parenting time. It is important that your Toronto Family Lawyers explains this to you.
As a parent who is facing a separation or divorce, you will ultimately face the following question: how much time will I be able to spend with my child? Typically, without an agreement or a court order in place that defines the terms of your access, both parents possess an equal right of access to the child. If possible, the child should be given equal access to both parents, as this would promote maximum exposure to each parent. There is a growing trend in the Ontario Family Court system that is now favouring a roughly equal parenting schedule as a starting point. However, due to many different factors, a shared or equal access schedule might not be in the best interests of your child. The affordable family lawyers of the GOLDSTEIN Divorce & Family Law Group will be able to discuss with you what may be best for your particular situation.
It is important to note that when making decisions about access to a child, the family court will determine the issue by using what is called “the best interests of the child” test. This test applies under both the Divorce Act S.16 (8) and the Children’s Law Reform Act S.24 (2). The best interests of the child test considers the following:
- A child’s physical well-being;
- A child’s emotional well-being and security;
- The parent’s plan for the child’s education and maintenance;
- The child’s financial needs;
- The child’s religious and ethical upbringing;
- The parent’s understanding of the child’s needs;
- The child’s wishes;
- Keeping siblings together, and
- The relationship between the child and the parent.
As our Toronto Divorce Lawyers will explain, the test above guides the courts in making determinations about access arrangements. It is important to note that s.16 (10) of the Divorce Act states that “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact”. In most cases, the best divorce lawyers in Toronto should assist their clients in trying to determine what is best in the client’s specific situation.
Often, a shared access schedule cannot be implemented due to the respective parents’ work schedules or the child’s needs. For example, either parent may have a work schedule that would not allow them to care for the child half of the time or the child may live in an outside jurisdiction. For this reason, it is important to speak with your ex-partner either directly or with the assistance of Toronto Family Lawyers to craft an access schedule that works best for your child.
The following are different types of parenting arrangements that may be implemented depending on your circumstances. Our Toronto Divorce Lawyer will help you decide which one is the best for your situation:
Shared Parenting (also called Shared Custody):
In a shared parenting schedule, the child resides with each parent roughly 50% of the time. The exact schedule can be determined by the parents taking into consideration the parents’ schedules and the child’s needs. For example, the parties may choose a 2-2-3 schedule or a week-about schedule.
A shared parenting schedule generally works best when the parties live close to each other, the parents can co-parent effectively, the child can adjust to switching homes, and the parents agree that a shared arrangement is in the best interests of the child. The best divorce lawyers in Toronto of the GOLDSTEIN Divorce & Family Law Group can help you determine if a shared parenting arrangement is right for your case.
Specified Access Schedules
It is often the case that shared parenting may not be appropriate. This can be for a multitude of reasons including: the child’s needs, the parents’ schedules or perhaps the parents are unable to co-operate sufficiently. In these situations, the parties may agree to have access take place on the weekends and/or designate certain weekdays for access with the child. These schedules can include daytime and/or overnight visits with the child and can occur on a weekly or bi-weekly basis.
In addition to a specified weekly access schedule, it is often the case that parents also negotiate holiday and summer/winter break access. The affordable family lawyers of the GOLDSTEIN Divorce & Family Law Group can help you determine if a specified access schedule is right for your case.
Supervised Access
Generally, access to your child should be free of supervision from a third party. Both s.16(9) of the Divorce Act and s.24(3) of the Children’s Law Reform Act, state that the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
However, there are some situations where a parent’s conduct or misconduct may justify an order for supervised access. Some examples include:
- has a drinking or drug problem;
- has a mental health issue that affects their ability to care for the child;
- has committed family violence in the past;
- has threatened to abduct the child;
- does not have the necessary parenting skills to care for the child without supervision; or
- is not familiar with the child.
It is important to note that orders for supervised access are drastic and are only to be made if they are in the best interests of the child. Further, a supervised access order is often meant to be temporary. In M.(B.P.) v. M.(B.L.D.E.), 1992 CanLII 8642, Abella J.A. stated (at para 33):
The purpose of supervised access, far from being a permanent feature of a child’s life, is to provide “a temporary and time-limited measure designed to resolve a parental impasse over access. It should not be used … as a long-term remedy”.
Also, it is important to note that the parent looking to impose supervised access will have the onus of proving this claim. This means that the parent looking to limit access would have to provide evidence which would justify the implementation of a supervised access order.
As your Toronto family lawyers will explain to you, the goal of supervised access is to provide a safe and neutral setting for visits between the child and the parent. Supervised access can take place in many forms (i.e. in private or in public with the assistance of a third party, through a supervised access centre, or at the offices of the Children’s Aid Society).
As your Toronto Divorce Lawyers will explain, supervised access exchanges are also common and can be used when there are conflicts between the parents or a court/restraining order is in the place that would restrict contact between the parents.
The best divorce lawyers in Toronto of the GOLDSTEIN Divorce & Family Law Group can help you determine if supervised access is right for your case.
No Access
In the most extreme cases, the court has the discretion to order that there be no access between the parent and the child. An order for “no access” could be made were the Child has been neglect or abused, and/or the child’s safety cannot be protected.
Conclusion
As shown above, disputes regarding child visitation can arise in a multitude of situations. While your access rights may be limited by your ex-partner or the family courts, it is important to remember that the courts recognize the importance of a child being able to spend time with each parent. It is an objective of the court to promote contact with each parent and make decisions in the best interests of the child.
If you believe that your access rights are being unjustly limited, then you should seek the assistance of a the best family lawyers in Toronto to assist in crafting an agreement or obtaining a court order that would afford you the access to your child that your child deserves. Our affordable divorce lawyers can assist you with this. If you need assistance from some of the best family lawyers in Toronto regarding the issue of child access (or any other issue), then please contact us at 416-519-5552 or at info@amglaw.ca and one of our lawyers will get back to you immediately.