Q – What types of custody arrangements are there?
Q – How does the court decide what type of custody arrangement to order?
Q – How does the court determine how much access to grant a non-custodial parent?
Q – Can a court order regarding custody/access be changed?
Q – What if my ex does not comply with a court order for access?
Q – Can a child decide with which parent they want to live?
Q – If my ex cheated on me, does that mean I should get custody of the children?
Q- If my ex misses his/her child support payment, does that I mean I can deny access?
Q – What is custody?
A – Ordinarily, custody means the day to day “care and control” of a child.
Q – What types of custody arrangements are there?
A – 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
Q – How does the court decide what type of custody arrangement to order?
A – 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.
Q – What is access?
A – Access has been described as the parental right to spend time with the child.
Q – How does the court determine how much access to grant a non-custodial parent?
A – 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.
Q – Can a court order regarding custody/access be changed?
A – 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.
Q – What if my ex does not comply with a court order for access?
A – 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.
Q – Can the custodial parent move to a different jurisdiction without the consent of the non-custodial parent?
A – 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.
Q – Can a child decide with which parent they want to live?
A – 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.
Q – If my ex cheated on me, does that mean I should get custody of the children?
A – 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.
Q- If my ex misses his/her child support payment, does that I mean I can deny access?
A – 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.