Custody & Access

Custody and access disputes are often the most difficult aspect of a matrimonial separation. They are certainly among the most difficult cases that courts are called upon to decide.

The law relating to custody and access is governed by the federal Divorce Act, where the parties are married, or by the BC Family Relations Act, where the parties are unmarried or wish to separate but not to divorce. There is no significant difference between the two laws with respect to the issue of custody and access.

In deciding who should have custody of a child, or access to a child, following a matrimonial separation, the court is required by law to be motivated by what is best for the child, and not necessarily by what each parent wants. In making a custody or access decision, the court will take into consideration such factors as 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, and the willingness of each parent to allow or facilitate access to the child by the other parent. The court will also be directed by the principle that the child should have maximum contact with each parent.

The court can order that one parent have sole custody or that the parents share joint custody. Generally, courts will not order parents to share joint custody of a child unless there is some evidence or indication that the parents will be able to cooperate and communicate with one another and to make decisions and resolve differences relating to the child with a minimum of conflict. Where it is apparent that to expect the parents to make joint decisions will only lead to further conflict, the court is likely to give sole custody of the child to one of the parents.

Where one parent is given sole custody, the court can order the parents to share joint guardianship of the child. This generally means that the parties are expected to consult with one another and keep one another informed with respect to the child, and in particular with respect to important social, educational and health-related events in the child's life. The parent who does not have custody of the child is entitled to obtain information about the child directly from teachers, doctors and other persons looking after the child. However, the parent who has custody of the child is usually given the power to make decisions with respect to the child in the event of a disagreement between the parties.

Note: The information provided above is general information only and is provided as a public service. For detailed information and advice with respect to your specific circumstances, please contact our office for an appointment.