Debunking 7 Myths About Child Access/Custody

As experienced family and divorce lawyers, one of the most contentious issues we notice for couples separating is determining how childcare should be split between the two parents. If one parent resides a long distance away from the child, the access arrangements can be limited because it may not be in the best interests of the child to be frequently travelling for long periods of time. Access and custody can also be limited if there is abuse or unfit parenting practices conducted by a parent. 

We have set out and debunked some myths we often hear about child access and custody so that you are more informed about your parenting entitlements. Should you have any specific questions however, do not hesitate to contact us for a free consultation.

(1.) I am entitled to access because I pay child support.

Paying child support does not entitle a parent to access. Nor does non-payment deny a parent access. Parents can be required to pay child support without being able to see their child. 

Child support does have some relationship with access, specifically when determining the payment amount. If the access arrangement has both parents spending 40% or more time with the child, then a parent may no longer have any entitlement to child support. This is because, in these situations, both parents are taking an equal share in child rearing. 

(2.) Only biological parents can have custody and access rights.

Grandparents and non-biological parents (i.e. step parents) in certain circumstances may be entitled to make decisions or be a part of the parenting plan. The Children’s Law Reform Act sets out the necessary requirements for bringing forth an application for a non-biological parent. Case law also supports non-biological parents and grandparents in obtaining custody and access to the child.

One of the main considerations is if this individual has stepped into the role of a parent and if the relationship between the individual and the child is akin to that of a parent/child relationship. 

(3.) The child has the final say for which parent has custody.

Children do have some say in respect of which parent(s) has/have custody and the extent of access. It is one of many factors that a court considers. However, while the child’s wishes are important, they are not taken above all else. What the child desires is not always in their best interest, and a judge usually aims to have both parents involved in the child’s life if possible.

If a child’s opinion is required this will usually involve the Office of the Children’s Lawyer, which is a government body. They are able to conduct assessments of the child and are able to bring the opinion of the child forward in a fair and unbiased manner. 

(4.) The best interests of the child in relation to their care depend on the financial stability of each respective parent.

Determining the child’s best interests is a fact-driven exercise and specific to every child. A child’s interest and needs are influenced by the circumstances surrounding them, the family dynamic, the parents themselves, and the type of life that the child has lived. 

Legislation and case law both offer insights into what influences the best interests of the child. Some factors the courts have considered are:

  • the love and affection between the parent and the child,
  • the living conditions of the parent and
  • the siblings of the child.

The courts look to have the child spend as much time with each parent as reasonably possible, but in certain circumstances it is not advisable for the child to have contact with the parent. When making any custody or access arrangement, in court or through a separation agreement, parents, lawyers, and judges must always keep centre of mind the best interest of the child.

(5.) Childcare/parenting arrangements can largely be agreed by the parents alone.

This is somewhat true. The Children’s Aid Society (“CAS”) however also keeps the best interest of the child in mind when fulfilling their government duties of child protection. CAS becomes involved where they are alerted to the mistreatment or endangerment of a child, and CAS removes the child from the parent and makes them a ward of the state. CAS will look to see if they can place the child with the other parent or another family member where further endangerment of the child is unlikely to occur.

If a family member is not able to look after the child, the child will be placed in the foster care system. CAS and child apprehension cases have a different interpretation of best interests and the contextual factors that apply. At Tailor Law, we have specialised family lawyers who can help ensure your position and your child’s best interests are properly represented where CAS are involved. Contact us today for a free consultation to discuss your matter confidentially with us.

(6.) Parenting plans must be set by the court in order to be binding.

Parents are able to make a parenting plan and decision-making plan on their own without having one imposed on them by the court. Parenting plans/access arrangements can be incorporated into a separation agreement that has already been drafted. Any parenting plan should be in writing and signed by the parents. As always, the best interests and needs of the child should be considered above all else, taking into account the child’s maturation as they age. 

Custody and access arrangements should be clear and predictable, but they should also be flexible enough to adapt to unexpected circumstances that may arise for the parents and the children. If unexpected events are not accounted for, or the parents are not able to come to an agreed change, the parents can turn to the courts to make a decision.

(7.) Custody and access only deal with which parent the child stays with and which parent has visitation rights.

Alongside living and visitation arrangements, there are many other key issues to bear in mind such as:

  • School schedule for the child
  • Extra-curricular events
  • School field trips
  • Work schedule for the parents
  • Where the child will live primarily
  • Going on out-of-country trips with one of the parents 
  • Considerations if one parent wishes to move to a different city, province, or country
  • Communicating with the child while with the other parent 
  • Health care Decisions
  • Emergency Care decisions
  • What type of education will the child receive
  • Cultural Events
  • Discipline of the child
  • What sort of food should the child eat
  • Languages spoken in the home
  • Religious upbringing
  • How to resolve disputes between parents
  • How will birthdays be spent
  • How will major holidays be spent
  • Allowance for the child
  • Gifts for the child
  • Clothing for the child

If you are looking for more information or have additional questions, please do not hesitate to contact us. As experienced family lawyers based in Mississauga, we can help you understand how child custody and child access laws apply to your situation. We will be happy to discuss your matter over a free consultation.

You can reach our office at 905-366-0202 or you can contact us through our website here.

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