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Before making important decisions regarding family law, you should consult with a member of our legal team in order to understand your legal rights and obligations.

Custody, Residency & Access

Custody refers to the power to make major decisions regarding the upbringing of a child. These decisions include matters relating to the religion of the child as well as his or her education and medical treatment.

When a parent is granted sole custody, that parent has the exclusive right to make all major decisions on behalf of his or her minor child. Where the parents agree on joint custody, both parents must jointly agree on all major decisions relating to their child.

Residency, on the other hand, refers to where the child will live. Day-to-day decisions are made by the parent in whose care the child is, according to the residential schedule.

When the child has primary residency with one parent, the other (non-custodial) parent usually has rights of contact or access. Access includes the right to be given information about a child’s health, education and welfare. The access parent is entitled to inquire about and to be given information from sources like the child’s school, doctor and daycare providers.

In an intact relationship, both parents have custodial decision-making authority. After the parties’ separation, if one parent moves out of the house with or without the child or if one parent allows the other parent to relocate with the child, the parent who remains with the child and who cares for the child daily has de facto custody. The other parent is entitled to access.

Best Interests of the Child

When determining custody, residency and access according to section 24 of the Children’s Law Reform Act and section 16(8) of the Divorce Act, the test is what is in the best interests of the child?

The best interests of the child test is focused on the child’s needs as opposed to the parents’ rights.

The following is a list of some of the factors that are used to determine what is, in fact, in the best interests of the child:

  • A child’s physical well being;
  • The bond between a child and his or her caregivers;
  • The child’s physical, financial and emotional needs;
  • The parent’s ability to care for the child;
  • The child’s culture, language and religion;
  • The benefit of keeping siblings together; and,
  • The child’s views (The older the child, the more weight will be given to his or her desires.)

The Preservation of the Status Quo

An important factor in determining who will maintain custody of the child is the status quo (or the existing custody arrangement).

The court will look to the existing custody arrangement and if that seems to be working then the court will likely be reluctant to make an order that will disturb the arrangement.

In Moores v. Feldstein, the natural mother gave the child to the Feldsteins when the child was a few days old. A few months later, the natural mother wanted the child to be returned. The proceedings were not commenced until the child was 2 years old and the case did not come to trial until the child was 4 years old. The Trial Judge found that the natural mother did not abandon the child and that she was not an unfit parent. Therefore, the Trial Judge awarded custody of the child to the natural mother. The Court of Appeal reversed this decision as the Court of Appeal Judge felt that the child should not be uprooted from the happy nurturing home that she knew for the past 4 years. This Judge stated that there was a serious risk inherent in uprooting the child at that point from her happy surroundings.