Child Custody & Access Defined

Custody refers to who has decision making power regarding the child’s health, education, religion and general welfare. The various types of custody arrangements are:


One parent (also known as the custodial parent) is responsible for making final decisions affecting the child. It is important for the non-custodial parent to remain an active participant in the child’s life. This requires being proactive in informing oneself about the child’s daily routine, appointments and schedule. The custodial parent should facilitate this by signing all consents and authorizations necessary for the non-custodial parent to speak directly with all professionals involved in the child’s life. This should not be construed as meaning that the parents should not speak with each other and when at all possible, the custodial parent should keep the non-custodial parent informed about such matters. Any court order or written agreement reached by the parties can contain provisions allowing the non-custodial parent to provide input into the decision to be made but ultimately it is the custodial parent who has final say on the matter.


Both parents share the decision making power, that is, the parents agree on all issues affecting the child. In situations where the parents are unable or unwilling to communicate effectively with each other, joint legal custody will not be feasible. When litigating custody issues, the courts will ensure that the parents are able to communicate in a manner that is conducive to constructive communication; failing which, sole custody will be awarded to one parent. Where there is no court order or written agreement to the contrary, the presumption is that the parents share joint legal custody of the child. It is important to note; however, that the Children’s Law Reform Act suspends a parent’s right to exercise custody and the “incidents of custody” where the parties live separate and apart and the child lives with one of the parties with the consent, implied consent or acquiescence of the other party. That is to say, in situations where the child has lived with one parent for a reasonable period of time, so that a status quo has been established, the other parent’s custodial rights may be temporarily suspended, if there is parental conflict that requires a temporary sole custodial arrangement.


Both parents spend relatively equal time with the child (each parent has the child in his or her care and control for at least 40% of the time). In this type of shared custody arrangement, the parties generally agree that they will make decisions affecting the child when the child is in their respective care.


Each parent has custody of one or more child.


Deals with how often a parent visits the child. Usually the child resides with the custodial parent since the custodial parent must be privy to the child’s daily routine, activities and appointments. Where the child spends a majority of his or her time is the child’s “primary residence”. Regardless of the custodial arrangement or where the child’s primary residence is, it is important for both parents to spend as much time with the child as possible. Family law legislation stipulates that there should be maximum contact between the child and both parents, provided it is in the child’s best interest. Access schedules are unique to each individual case and are generally best worked out between the parties.

Access not only involves access to the child but access to information regarding the child’s life (appointments, school information, medical information). If one party is denied access to the child and/or is not being informed about the child’s welfare, it is important to address this issue immediately with the other party and if need be, address the issue through the courts. The longer the delay in addressing custodial and access issues, the harder it may be for the complaining party to receive appropriate redress.