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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. I. Introduction Access, sometimes called "visitation," "contact" or "parenting time," is generally described as the time that the parent without a child's primary residence spends with the child. Simply being a parent, however, does not guarantee a right to access. As in all matters involving children, the court's primary concern is with the child's best interests, not with whatever the interests or preferences 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 says this: (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. In the vast majority of cases, the parent without the children's primary residence will have some amount of contact with the children, regardless of whether the parents have sole or joint custody. The amount of access can range from contact once or twice per month to a very involved schedule in which the parents share their children's time equally or near-equally. Access is a basic parental privilege and a parent will be 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, since the decision about how much access each parent should have involves a consideration of the child's best interests, a parent's failure to exercise that access and remain consistently involved in a child's life may be seen as 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 and both parents have a duty to foster this relationship. A. Access Difficulties 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 other situations, a child will demonstrate a natural separation anxiety on leaving a parent for the child's time with the other parent. Even though most children experience separation anxiety on leaving both parents, each parent only experiences only one side of the anxiety and never sees the child ease back into a warm relationship with the other parent. This sometimes leads parents to believe that the child doesn't want to see the other parent. In difficult circumstances like these, complying with an order for access can be very difficult: the child seems not to 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. It is critical to remember that:
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 as the child grows up, the court will pay more and more attention to the child's wishes even though the court may not heed them. It is always easier to accept that a child's reluctance to visit a parent is genuine when the information comes from the child him- or herself. B. Access and People other than 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, long-term caregivers 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 provided in the first chapter of this section. C. Access and Child Support A parent's access to a child is entirely different and separate from a parent's obligation to pay child support. Child support is not a fee paid to exercise access, nor is it a fee charged to allow access. Child support is paid by one parent to the other to help defray the costs associated with raising the child and help ensure that the child has as good and as enriching a childhood as possible. Access, on the other hand, is the privilege 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, and the court will not approve of any attempt to barter access for child support or vice versa. D. A Note About Language In this chapter, I have used the phrase "custodial parent" to describe the parent with whom the child lives most of the time. It's just shorter than saying "the parent with whom the child lives most of the time," and I don't mean to imply that this parent has sole custody of the children. In fact, most parents these days have joint custody of their children even though one parent plainly has the children for a lot more of the time than the other parent. E. Key Statutory Provisions The important sections of the federal Divorce Act dealing with access are these.
The important sections of the provincial Family Relations Act are these.
Back to the top of this chapter. II. 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.
There really is no "standard" pattern of access. All of these factors usually get taken into account when an access schedule is designed, and in general an access schedule can be as creative as the flexibility of the parents and common sense allow. 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. III. 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 also applies to agreements about access. A. 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 about where a child will live and the role each parent will play in raising the child. Interim access will be decided after a decision has been made with respect to the child's primary residence. While an interim order will be made based on the same considerations that apply to final orders, a lot of weight is usually given to the status quo — the parenting arrangements in place at the time the application for the interim order is made — in order to minimize the amount of disruption the child has to deal with while the parents' legal issues wind their way through the court system. Note the wrongful conduct of parent will not establish a status quo that the court will respect. 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; if a parent has taken off with the child, a court may order the parent and child to return. B. Specified and Unspecified Access A typical access order provides either that the non-custodial parent will have an unspecified amount of time with the child or a specific schedule of access to the child. 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 might provide that the non-custodial parent can see the child every other weekend, from a certain time on a certain day until a certain time on another day, on a couple of weeknights between certain 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. A chart showing a number of different parenting schedules is available in the Children > Parenting after Separation chapter. C. 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 reasonably 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. D. 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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