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When people separate with young children, it can be difficult to negotiate a workable custody and access schedule, particularly if both parties are not planning on residing in the same city, or where the relationship has broken down to such an extent that workable co-parenting is not realistic.
There is no legal presumption in favour of shared physical custody in Ontario. So, while some couples might think that it’s the norm for parents to share 50/50 custody, with the children essentially splitting time between each household, custody and access decisions are based solely on the best interests of the child. For various reasons, a time sharing arrangement may not be in the best interests of the child, even if it’s what one or both parents want. If parents have a particularly acrimonious relationship post separation, it’s hard to see how a child splitting equal time between them- with all the ongoing communication and compromise that would be required- could be in their best interests.
To be distinguished from time sharing, joint custody refers to equal decision-making of both parents in the areas of education, health care and religion.
Most non-custodial parents will be entitled to exercise access if the child is living primarily with the other parent. Access every other weekend, one or two mid-week visits, and one-half of all holidays and vacation time would be a standard access arrangement. Although there are certain common law principles that will guide a judge’s decision in custody and access cases, these cases are very fact driven. Access might be more limited than is customary if the parent has mental health or other issues which prevent them from having a positive relationship with the child.
A separation agreement will detail all the particulars of a custody and access arrangement including drop off and pick up times, when telephone calls can be made, the dividing up of all annual holidays and birthdays, what activities the children can be involved in, and so on. Because there is no limit to what separated parents can disagree on, it’s worthwhile to itemize as many issues as possible in the separation agreement in order to minimize future problems.
Clients often want to know what custody and access schedule will govern until there is a temporary agreement or court order in place. Without anything in writing, or a court order, both parties have equal rights with respect to custody and access. Courts generally want the parties to maintain the status quo until the trial date. However, it’s not always easy to ascertain the status quo in the period immediately following a separation. If a stay at home parent retains primary physical custody of young children after separation, the status quo is being maintained because the children retain their primary caregiver. However, if you have two parents who are both equally involved in caring for their child, shared custody might be more in keeping with what that child is accustomed to, notwithstanding that one parent might refuse to entertain the idea of shared custody, even on an interim basis.
Once there is a final court order on custody and access in place, it can only be varied on the basis of a material change in circumstances. This material change could include one of the parties relocating and moving to another city, a child becoming older, or a child developing different needs.
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Kerry Fox, LL.B.
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