Mulligan Tam Pearson Lawyers

Ordinarily, custody means the day to day “care and control” of a child.

There are three main types of arrangements:

• Sole custody – where the child spends the majority of the time with one parent and that parent has the day to day care and control of the child
• Joint custody – where both parents continue to make day to day decisions for the child, regardless of the actual amount of time the child spends with each parent
• Split custody – where one parent has custody of some but not all of the children, and the other parent has custody of some but not all of the children

The court will always make a decision based on the best interest of the child. While this concept can be written in one sentence, it is often the most difficult issue to resolve.

Access has been described as the parental right to spend time with the child.

Like with most other decisions, the best interest of the child is paramount. Generally, it is considered desirable that the child have the influence of and contact with both parents while growing up. However, there may be circumstances in which it is not in the best interest of the child to have that arrangement.

Yes, but there must be a “material change” in circumstances. If that has been established, then the court would take a fresh look at the facts and determine what the best interest of the child is.

If the proceeding is in Provincial Court, the person violating the court order can be charged with an offence under the Offence Act. If the proceeding is in Supreme Court, then in addition to the above, the person can be brought before the court for a “contempt of court” charge. In some cases, the person can be imprisoned for not complying with a court order.

The custodial parent wanting to move can, and usually does, constitute a “material change” in circumstances as to warrant a fresh look at the parenting situation. If the parties cannot resolve the issue themselves and a court is called on to decide, the judge will have to consider the totality of the circumstances to see whether the proposed move is “in the best interest of the child”. The judge may or may not allow the move depending on a number of factors, including:

• Parenting capabilities of and the children’s relationship with the parents and new partners;
• Employment security and prospects of the parents, and new partners;
• Access to and support of extended family;
• Difficulty of exercising the proposed access and quality of the proposed access if the move is allowed;
• Effect on the children’s academic situation;
• Psychological and emotional well-being of the children;
• Disruption of the children’s existing social and community support and routines;
• Desirability of the proposed new family unit for the children;
• Relative parenting capabilities of each parent and the respective ability to discharge those parenting responsibilities;
• Children’s relationship with both parents;
• Separation of siblings; and
• Retraining or educational opportunities for the moving parent.

Depending on the age of the child, the child’s view can be taken into account. However, the child’s view will only be one of many factors to be considered when deciding, for example, which parent will have custody. “The best interests of the child” analysis will ultimately prevail.

Not really. The “best interests of the child” will always be the analysis, and the infidelity of one spouse is generally considered not a relevant factor. However, if the conduct of the person calls into question his/her parenting ability, that will be a factor in deciding the issue of custody.

No. Child support provides for the child. It is not payment for visiting the child. The two concepts are distinct and one is not predicated on the other. In other words, missing child support payment is not reason to deny that parent access.