Canada Child Custody, Guardianship & Access
The information below is general in nature and not intended to be a substitute for legal advice. If you are concerned about custody of or access to your child, please contact our offices.
Child custody, guardianship and access rights/arrangements can come about by statute, agreement or Court order in Canada.
For married couples, it is possible to obtain Canada child custody and/or access orders under either the FLA (provincial legislation) or the Divorce Act (DA) (federal legislation). Unmarried couples may only obtain custody and/or access orders under the FLA. While the statutes do have some differences, the courts have interpreted them in a similar manner so that there are effectively few substantive differences.
Do not sign a separation agreement without independent legal advice. Courts are not forced to accept the terms of an agreement between the parents and will look to the best interests of the child.
Both the Provincial Family Court and the Court of Queen's Bench have jurisdiction over custody, guardianship and access matters under the FLA. However, parties seeking a divorce at the same time as a Canada child custody or access order are limited to proceedings in the Court of Queen's Bench.
A Court order granting custody or access under the Divorce Act may be obtained prior to, at the same time, or after, a divorce. In the case of unmarried couples, an order may be obtained at any time.
The distinction between Custody, Guardianship and Access
The word “custody” is sometimes used to mean mere physical custody and day-to-day care of the child. At other times, it is used in a broader sense to mean the full bundle of rights and responsibilities of a parent to a child (in effect, to mean something very close to guardianship). The Court often used the broad meaning and both the Divorce Act and the Family Law Act have adopted a broad definition of custody that includes physical control over the child as well as the right to determine the child’s education, healthcare, religion, and other matters concerning the child’s well-being.
The Divorce Act does not mention guardianship but an order for custody under the Divorce Act gives the full bundle of parental rights and responsibilities unless some rights or responsibilities are reserved to another person by statute or court order.
“Guardianship” refers to the full bundle of parental rights and responsibilities. Guardianship is composed to two parts: guardianship of the estate of the child in which the guardian has the full bundle of parental rights regarding the child’s property; and guardianship of the person of the child in which the person has the full bundle of parental personal rights, including the right to physical possession of the child.
“Access” can be regarded as a form of temporary possession of the child with the powers granted to the access parent (or other person) being those necessary to ensure the well-being of the child. Access is not intended to be the mere right to visit a child. Access is intended to facilitate a meaningful, continuing, post-separation relationship between the child and access parent.
Access has been stated to be a right that belongs to the child, not the person seeking access. However, it is probably best understood as a mutual right.
If there has been no Court order or Agreement
In the absence of a Court order and subject to any agreement between the birth parents, guardianship of the child is held jointly by the mother and father so long as they live together. After separation, the birth parents remain joint guardians of the estate of the child but the birth parent who usually has care and control of the child is the sole guardian of the person of the child. If the father and mother were never married and never lived together so as to be considered joint guardians, then the mother is the sole guardian of the child.
Where there is no Court order or agreement and there are conflicting claims to custody, the person who may exercise custody is the one with whom the child usually resides. In cases where the child resides with both parents, the parent who has the day to day care of the child may exercise custody.
Factors Considered in making child custody and access awards:
In making a custody, guardianship or access order, the Court must look to the best interests of the child.
In making a custody order, the court takes into consideration the condition, means, needs and other circumstances of the child. Relevant issues are the health and emotional well-being of the child including any needs for care and treatment, the love and affection between the child and other persons, the education and training of the child, the capacity (including financial) of each prospective caregiver to look after the child, and, if appropriate, the views of the child (typically more important as the child gets older).
The Court will consider who looked after the child while the parents lived together, what each parent's plan for the care of the child is following the separation, the degree of bonding between the child and the prospective caregiver, as well as the amount of time that the parent has to spend with the child.
A child’s race, culture or aboriginal heritage and the custodial parent’s willingness to respect and foster the child’s cultural identity is a relevant consideration.
The conduct of one or both parents in not considered relevant to the determination of child custody unless the conduct is relevant to the ability of the person to parent a child. Personality, character, and stability will be taken into account. A person’s alcoholism, drug addiction, sexual misconduct, dishonesty, and lack of social responsibility may also be considered in determining the best interests of the child.
The willingness of each parent to allow or facilitate access to the child by the other parent is also an important factor. The court must seek to make an order that will facilitate the child having the maximum contact with each parent, subject to the child’s best interests.
The Court is typically slow to change the status quo where the children are happy and in a stable setting. However, if the long term best interests of the child require a change, the court may so order notwithstanding the immediate discomfort and emotional upset.
In making an access order, the Court will look at the same factors, but with the aim of making an order that facilitates a meaningful relationship between the access parent and the child in so far as it is in the best interests of the child.
Access has been denied in circumstances where the Court perceives risk to the child, the person has had insufficient contact with the child prior to the application, where there is a problem between the child and the parent, or even where there is a problem between the parents.
Where the Court has some concerns about granting access, a conditional order may be made rather than denying access all together. The conditions may be as simple as setting a time and place for access or as onerous as requiring a third party to supervise access.
Types of Orders
There are many types of custody orders that may be made. A court may order sole custody (with sole guardianship) sole custody with joint guardianship, joint custody, shared custody (equal time) or decline to make an order.
Access may be ordered with or without attached conditions (for example supervised access, or a specific schedule), and it is possible to get an access order when no order for custody has been made. It is also possible for third parties to obtain access orders.
In the past, Courts have been reluctant to order parents to share joint custody of a child unless there was some evidence or indication that the parents would be able to cooperate and communicate with one another and make decisions and resolve differences relating to the child with a minimum of conflict. Where it was apparent that to expect the parents to make joint decisions would only lead to further conflict, the court was likely to give sole custody to one of the parents.
In the early 1990's joint Canada child custody awards increased as courts looked beyond bald statements that the parties could not cooperate and began to order joint custody even in cases where the parties did not always see eye to eye regarding the raising of their children. Judges have concluded that to require perfect cooperation between parents after separation is unrealistic.