Canadian law states that both parents should have the right to raise their children and make decisions about their lives. If the parents separate, plans must be made about how and with whom the children will live. These decisions can be made with or without the help of a lawyer and the Court, unless both the parents disagree. If there is disagreement, either parent can apply to Court for an order of custody or access.
What is Custody?
Custody means having the legal right and responsibility to make certain decisions about the child’s welfare. This usually includes making major decisions about the child’s education, religion, and medical decisions. Parents often think having custody gives them the right to make all decisions about the child, like when and where they can go on vacation, dietary restrictions, schedules etc., but this is not the case. These “day to day” decisions (as they are referred to) are made with the parent who the child is residing at any particular time and do not form part of “custody”.
There are two different types of custody: Joint custody and sole custody.
Joint custody means that both parents must agree on major decisions that affect their child. In other words, one parent cannot decide these things without the agreement of the other. If they disagree, they must find a way to resolve it. Joint custody works best when parents share similar ideas about how to raise their child.
Sole custody means only one parent makes certain decisions about the child’s welfare (education, religion and medical decisions), even if the other parent disagrees.
Courts tend to favour joint custody believing that it is in a child’s best interest that both parents are actively involved in making all major welfare decisions. That being said, there are sometimes circumstances in which joint custody is not an option.
What is Access?
In certain cases that are not a “shared parenting” (i.e. both parents get an equal amount of almost equal amount of time with the children), the children will live primarily with one parent and see the other parent on an agreed upon schedule. Access times are usually outlined in an agreement so that there is no confusion for the parties or the child. This is referred to as a “fixed” access schedule.
In certain circumstances, it is appropriate for a parent to have “supervised” access. This means that a parent can only see the children under the supervision of a third party. This may be appropriate if the access parent suffers from addiction or has mental health problems. In extreme circumstances (and this is very rare), it may be appropriate to have no access.
The Parenting Agreement
If the parents have civil relations with each other, custody and access decisions can be made informally. However it is best to put a ‘parenting plan’ or ‘parenting agreement’ down on paper and have both parents sign it along with a witness. It is best if a family lawyer, parenting coordinator or mediator helps draft the parenting agreement in order to cover any important aspect that the parents might not have thought of. Each parent should have their own lawyer review the parenting agreement before it is signed. If you require a parenting agreement or are experiencing issues with regards to custody or access, you should speak with a family law lawyer.