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Access rights and visitation

Canada makes a distinction between the concepts of custody and access. The concept of custody means that a parent (or both if custody is shared) has the right to make decisions for the child. The parent given custody gets to decide:

  • What education programs the child may attend;
  • The child’s religion;
  • Health-care decisions;
  • Where the child will live

Custody is not about whom the child lives with or spends time with. That is closer in line to what access means in family law.

Access means the time the child gets to spend with a parent. Though the parent who has access may not have custody, that parent still has the right to be informed about the child’s life. The parent with access has the right to get information such as the health, education, religion and welfare of the child. The only reason a parent with access may not get this information is if denied by a court order.

There are several types of access a parent can get. Family law in Canada is regulated by provincial and territorial law. Each province and territory has its own family law act. Although they are similar there are differences and a person wishing to find out exactly what rights they have under visitation and access should consult with the family law act of their province, or better yet, a lawyer who is versed in provincial/territorial family law.

However, most of the access types available in one province or territory are usually similar. The types of access granted by courts are:

  • Reasonable access: this type of access is usually one the parents are able to reach together. However, this type of access is largely dependent upon the parents co-operating with each other. The access arrangement here are left open and are typically flexible, which allows the parents to make arrangements between them as they are able to communicate with each other. This also does away with needing a schedule. However, if at any point the relationship between the parents falls apart, they can still go back to the court to get an access order.
  • Supervised access: The law recognizes that there are situation in which the parent who wants access should not be alone with the child. However, as a parent has rights, the law still allows visits, as long as it’s in the presence of another adult. Usually supervised access visits are given if a parent has a drug or alcohol problem, has threatened to kidnap the child in the past or has abused the child in the past.
  • Fixed or specified access: this is an access arrangement where there is a specified or fixed schedule. These types of access arrangements are quite detailed because they cover holidays, birthdays, religious occasions and other major events. Conditions, too, can be very specific as to who will pick-up and drop-off the child, for exactly how long, etc.,
  • Conditional access: this is visitation is allowed once certain conditions have been fulfilled;
  • No access: this is a situation where access is completely denied to a parent. This usually only happens in the most extreme of cases. Such cases would include where serious abuse or neglect has been proven or the child’s safety cannot be protected while with the parent.

As can be seen, there are many situations that can affect access to a child. If you are in a situation where you and the other parent are trying to determine access, it’s always advisable to at least consult with a family lawyer in your province or territory.

Read more:

Custody And Access: Children of Married Parents Seeking a Divorce Alberta

Separation and Divorce: Child Custody, Access, and Parenting Plans - Community Legal Education Ontario