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This chapter will provide a brief overview of access, and discuss the factors that govern awards of access and the types of access that a parent can have to a child. Introduction Access, sometimes called "visiting rights," is generally described as the time the parent without a child's primary residence spends with that child. While it is generally safe to say that access is a basic parental right, the simple fact of parenthood does not guarantee an absolute right to access. As in all matters involving children, the court's primary concern is with the child's best interests, not with what the interests or concerns of the parents might be. An award of access to a parent must be in the best interests of his or her child. Section 16 of the Divorce Act, the section dealing with orders for custody and access, states, in part, that: (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. It is safe to say that in the vast majority of cases, the parent with whom the children do not live most of the time is awarded some amount of access, regardless of whether the parents have sole or joint custody. A non-custodial parent is generally entitled to share in the life of his or her child unless he or she somehow poses a risk to the safety or well-being of the child. However, just as the decision about how much access each parent should have to a child involves considering the child's best interests, a parent's failure to exercise that access and remain involved in a child's life may be seen as an action contrary to a child's best interests. In the case of B.J.M. v. K.F.B., a 2003 decision of the Supreme Court of British Columbia, the court said this: "By refusing to exercise access to his son, the father has essentially ignored the child's best interests since 1993." It is a basic principle of family law that it is in the best interests of children to maintain as much contact with both parents as possible and to maintain a strong bond with both parents. The essential point of an access order is to promote and nurture the child's relationship with the non-custodial parent. In some family situations, deciding access can be a serious problem. While most parents do their best to shield their children from the bitterness, anger and hard feelings that can sometimes accompany a divorce, children often absorb some of the emotional tensions in the household and can come to see the parent who left as "bad" compared to the "good" parent who stayed. As well, children can also form the impression that the "bad" parent is somehow hurting the "good" parent, although perhaps not in a way that they can understand. For these reasons among others, children sometimes come to dislike or resent the "bad" parent and not wish to see him or her. In difficult situations like this, complying with an order for access can be very difficult: the child plainly doesn't want to go and visit the non-custodial parent, and the custodial parent feels badly about making them do something they don't want to do. What is critical to remember is that: firstly, the order for access is binding on the custodial parent, not the child; secondly, unless the child actually visits the other parent, the child might never get over his or her dislike or resentment; and, thirdly, sometimes the reluctance a child displays about going to visit the other parent is just normal separation anxiety rather than an actual dislike of the other parent. As a general rule of thumb, the custodial parent has an obligation to do all he or she can to ensure that the child visits the non-custodial parent, no matter how much of a fuss the child puts up. Remember that once the child turns twelve, the courts will begin to listen to the child's preferences, although the court may not choose to heed his the child's views. Access and Non-Parents Children may also have a right to remain involved and in contact with the other people in their lives, such as grandparents, cousins, aunts, uncles and so forth. Grandparents, and other people who aren't parents, can apply for access to children on their own, with or without the co-operation of the parents. More information about the interests of grandparents and other non-parents is set out in the first chapter of this section. Access and Child Support A parent's access rights to a child are entirely different and separate from that parent's obligation to pay child support. Child support is not a fee paid to exercise access or a fee charged to allow access. Child support is payable by a parent of a child to help defray the costs associated with raising the child and are paid to ensure that the child has as good and enriching a childhood as possible. Access, on the other hand, is the right of a parent to visit and spend time with his or her child so that the child can have the benefit of a strong, loving and meaningful relationship with both parents. To many parents, this will seem like a fairly basic point. However, some people, particularly when a custodial parent withholds access, are tempted to cut off their child support payments to punish the custodial parent for not allowing access. Other people demand child support payment before they will allow a non-custodial parent to see his or her child. Either way, this behaviour is wrong and the person who suffers the most is the child. Statutory Provisions: The Divorce Act The following are the primary sections of the federal Divorce Act dealing with access:
Statutory Provisions: The Family Relations Act The following are the primary sections of the provincial Family Relations Act dealing with access:
Back to the top of this chapter. Factors in Making Orders for Access Since neither the Divorce Act nor the Family Relations Act go into much detail regarding access, except to state the overriding importance of the child's best interests, the courts have had to come up with some guidelines of their own. The following are some of the factors the courts will consider in making an order for access.
A chart of different parenting schedules that accommodate some of these concerns is set out in the chapter Children > Parenting after Separation. Back to the top of this chapter. Types of Access Order There are two main types of order in family law, interim orders and final orders. Interim orders are made before trial, and final orders are made either by a judge after trial or with the agreement of the parents without a trial. The first segment that follows discusses some peculiarities specific to interim orders, but the rest of the segments apply equally to both types of order. This information is also applicable to agreements about access. Interim Orders Interim orders are intended to be a sort of rough-and-ready solution to the legal problems a couple faces pending a final decision at trial or a settlement of the action. Interim orders are short-term solutions intended to deal with the immediate problems of where a child will live and the role each parent will play. Interim access will be decided after a decision has been made with respect to custody. While an interim order will be made based on the same considerations that apply to final orders, a lot more weight is usually given to the status quo — how things happen to stand at the time the application for the interim order is made. This is because the courts generally seek to minimize the amount of disruption a child has to deal with while his or her parents' legal issues wind their way through the court system. Note that wrongful conduct by a parent will not establish a status quo that the parent can expect the court to enforce. If a parent is seeing a child too little or if the other parent is withholding access, the court will act on an interim basis to expand the time the parent has with the child. Specified and Unspecified Access A typical access order provides either that the non-custodial parent will have unspecified or specified access. Some orders provide for both specified access and "such other access as the parties may agree." Unspecified access is usually described as "liberal and generous access" in orders and family agreements. This sort of access is appropriate where both parents can communicate with each other reasonably well and each is prepared accommodate the other. Where there is any tension between the parties relating to the children, such an order may not be appropriate if there is a chance that one parent will withhold the child from the other. In fact, it may be a recipe for disaster. Specified access is probably the more common kind of access. Specified access orders state at what times and dates the non-custodial parent will visit with his or her children. These orders can be quite complex, dividing holidays, birthdays, Mothers' Day and Fathers' Day, special school days, and so on. Specified access orders can encompass pretty much every kind of arrangement that you can think of, or be limited and general. A typical specified access order will provide that the non-custodial parent can see the child every other weekend, on a couple of weeknights between specified times, and on certain holidays in alternating years. In general, the more difficult the parties' relationship is following separation, the more likely it is that the order will specify the access schedule on very detailed terms. Some people just need a set of rules to live by. Conditional Access A parent's access to his or her child can be made conditional on the parent doing or not doing something. If a parent fails to meet any of the conditions on which he or she may have access to the child, the parent's access to the child may be denied. In general, the court must have some fairly serious concerns about a parent's lifestyle or behaviour before an access order will be conditional. Conditional access orders have been made in cases such as the following:
In theory, access can be be made conditional for pretty much any kind of genuinely bad behaviour on the part of a parent. Supervised Access Access may be restricted where there is a concern that the access visits may harm the child. In extreme cases, the court may require that the non-custodial parent's access be supervised by a third party. Such supervision may be by a grandparent, another relative or a stranger. There are even companies who provide such supervisory services. The courts are generally reluctant to require supervision as a condition of the non-custodial parent, but they will do so where:
In general, supervised access is intended to be a short-term solution to a problem, rather than a permanent condition of access. Note that it is up to the custodial parent to show why access must be supervised. Back to the top of this chapter. Site Navigation
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