Custody and Access

The laws provide, generally, that both parents are entitled to “custody“. The word custody is not defined by the Divorce Act or the Children’s Law Reform Act.

The Courts have generally determined that custody is the right of the parent to be involved in areas of education, health and religion. Sole custody therefore implies full parental control over such matters to the exclusion of the other parent. The custodial parent makes decisions regarding the child while the “access parent” is entitled to visit with the child and to receive information concerning the child. Joint custody involves the sharing of the decision making power.

However, joint custody does not, necessarily, relate to the time-sharing arrangements. For example, parents may agree that they will share custody of the children, the children having their primary residence with the father, the children seeing their mother every second weekend. This type of situation can be defined as “joint custody”. Therefore, it is conceivable that parents can agree to joint custody while the children (child) reside, primarily, with one of the parents.

Unless parents can agree on such an issue, the Courts have been reluctant to make Orders for joint custody although there are recent decisions where the Courts have done so notwithstanding the reluctance of one or both parents.

There has been newspaper coverage in the past few years indicating that the Federal Government has considered amending the Divorce Act in a substantial way to provide for presumption of joint custody upon marriage breakdown. The effects would be substantial, as the law would speak in terms of co-parenting and / or parental authority and not custody. The real issue would then be one of time-sharing in cases where parents separate. As of January 2018, there have been no such changes.