Custody and Access
After a divorce or separation, parents must make arrangements for the care of children, which includes deciding where the children will live, and who will be responsible for making the major decisions about issues such as where the children will go to school, their medical needs, and so on.
The federal Divorce Act has certain rules about parenting arrangements for parents who divorce. The provinces and territories generally have similar rules for unmarried parents and for married parents who separate but do not apply for a divorce.
Parenting arrangements are referred to as “custody” and “access” in the Divorce Act. Provincial and territorial laws may use other words to refer to parenting arrangements.
The government of Canada has put together a great fact sheet entitled Making plans: A guide to parenting arrangements after separation or divorce that provides general information about parenting after divorce or separation.
Custody and access are perhaps the most contentious issues in the majority of separations that involve children. In law, custody refers both to where and with whom a child lives and the rights and responsibilities of a parent to the child in his or her care.
There are different types of custody:
Sole custody, where a child lives with one parent most of the time;
Joint custody, where the child either lives with both parents equally, or where both parents have agreed to share equally the rights and responsibilities of bringing up the child even though the child’s primary residence is with one parent;
Split custody, where the children are split up between the parents with one or more children living with one parent and one or more children living with the other parent.
Access generally refers to the time spent with a child by the parent who does not have custody, but it can also refer to visitation rights of grandparents, and other relatives.
Maintain a Presence in the Family Home
Lawyers will make a strategic case for maintaining a presence in the home, especially for spouses of young children, because judges are often reluctant to move them from the home of a parent under whose care and control they live. And, since the judge at trial is often reluctant to disturb the child’s world if it is meeting his or her needs, interim custody often means permanent custody.
My advice if you’re in this situation, is to stay put. As best as you can, avoid the moving in and out, the going from place to place. And if you’re heading for a real separation, many lawyers will advise you not to move out of the family home. If you do, it puts you at a disadvantage regarding settlement negotiations and custody issues with the children.
Unfortunately, unless the separating couple are on really good terms, living apart under the same roof can be a recipe for disaster, and the kids are the ones who will suffer the most.
Travel Documents and Consents
Scheduling vacation time with the children is a frequent area of contention between separated parents, and it wise to attempt to plan well ahead to obtain the necessary agreements. This is especially true if the vacation includes travel outside of Canada. In that case, you will require a travel consent letter signed by the other parent to present to customs, which will allow you to take your child out of the country and back again with no problem.
The letter should contain identifying data about the child or children, including name, birth date and passport number, the name of the adult with whom the child is travelling, the method and dates of travel including flight numbers and similar information, if relevant.
The letter should contain a declaration of consent that identifies the signor as a parent of the child, and which authorizes the accompanying parent to travel with the child in accordance with the detail contained in the letter. The letter must be signed and witnessed; a notarized letter is even better. Passport Canada have a consent letter form on their website.