Custody & Access

Married couples can seek orders with respect to custody and access under the Divorce Act or the Family Law Act whereas unmarried couples may only seek orders under the Family Law Act.

Under the Family Law Act, custody and access is referred to as guardianship, parenting time and contact. Guardians have parental responsibilities which permits them to make decisions for and about the child such as education, health, religion and such decisions must be in the best interests of the child. The time a guardian spends with the child is known as parenting time during which the guardian makes basic day-to-day decisions for the child. Time spent with the parent who is not a guardian is called contact.

Pursuant to s. 37(2) of the Family Law Act, what is in the best interests of the child is determined based on:

1. the child’s health and emotional well-being;
2. the child’s views, unless it would be inappropriate to consider them;
3. the nature and strength of the relationships between the child and significant persons in the child’s life;
4. the history of the child’s care;
5. the child’s need for stability, given the child’s age and stage of development;
6. the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
7. the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
8. whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
   1. the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
9. (j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.