Child Custody & Access

Everyone wants the children. Sadly, when you separate or divorce, in 90% of the cases you will end up with less time with your children than you had when you were together. Even more frustrating will be that the person who you know longer even like anymore will have a certain amount of control over your children, and peripherally speaking, you. Given the primary parent is entitled to a monthly tax free payment as child support, often keeping the primary parenting of the children becomes a financial consideration and instead of concentrating on what is best for their children, parents want primary parenting in order to ensure they “get” the payment, or conversely, they don’t have to “make” the payment. Our children literally become little people with prices attached to their heads. So, the fight begins.

In the decision of T.S. v. A.V.T, [2008] A.J. 293, the Honourable Justice Moen refers to a statement made by Ms. Chandler, a renowned Edmonton child psychologist:

Ms. Chandler rather graphically described the damage that can be done to children when their parents are in high conflict. She said such high-level conflict parents would never intentionally harm a hair on the head of their child, but that the dynamics between the parents is the psychological equivalent of taking a pail of scalding water and pouring it over the child. Long-term research that has been done on the effect of protracted high levels of conflict on children, even where parents are together, shows that the effects cannot always be predicted and vary with the child. For some children, it shows up educationally. For others, it shows up in their choice of peer group and whether or not they will get involved with the law or drugs. Regardless, research has shown that the children of high-level conflict families carry the marks and scars of the conflict. It is not the separation of the parents, but rather the way the parents interact that creates these problems. The same can be said for the parents’ families and, in this case, the grandparents.

Think about it. Is it worth fighting with your ex spouse if it hurts your children?

Parental alienation is a social dynamic, generally occurring due to divorce or separation, when a child expresses unjustified hatred or unreasonably strong dislike of one parent, making access by the rejected parent difficult or impossible. These feelings may be influenced by negative comments by the other parent and by the characteristics, such as lack of empathy and warmth, of the rejected parent.

The opportunity to visit or spend time with a child. Under the terms of the Divorce Act, R.S.A. 2000, a spouse exercising access right is also entitled to the information about the child’s health, welfare and education (obtainable directly from the school), unless a Court orders otherwise. The Divorce Act also states that an access parent is entitled to as much access as in the best interests of a child.

Over and over, you will hear a lawyer and the Courts talk about whether a certain matter would be in the “best interests of the child”. The test is not what suits you best, but always what is in your child’s best interests. If your behavior is potentially threatening to a child, or if you alienate the child from the other parent, it may not be in the best interests of the child for you to have primary custody or parenting of that child.

The Divorce Act defines a “child of the marriage” as a child of both spouses, a child of one of the spouses towards whom the other spouse acts as a parent or a child towards who both spouses act as a parent. Biological children, adopted children and children looked after by the spouses may all be considered children of the marriage.

The custody and support provisions of the divorce law apply to a child of the marriage who is under 18 years of age. The support provisions apply to a child who is over 18 and remains dependent on his or her parents because of illness disability or other reasons. A child enrolled in a recognized educational program and unable to support themselves may still be classed as a dependent.

An older term used to describe a parent’s control over their child given to them by the Court. This term is now often used interchangeably with “parenting”. This control generally includes the responsibility to make decisions regarding the education, religion and health care and to provide food, clothing and shelter for that child. In the vast majority of cases, the Court awards joint custody to the parents of the child.

This Act defines and establishes the parentage of a child, guardianship of a child for people who are not married. Under this Act, either the Provincial Court or the Court of Queen’s Bench can provide parenting and contact orders, or orders dealing with enforcement of time with a child and both child and partner support orders.

A mother and father can continue to share responsibility for making major decisions, which affect their children, regardless of which parent the children actually live with on a day-to-day basis. Such arrangements require a commitment on the part of both former spouses to co-operate and communicate for the benefit of the children. Joint custody does not require alternating periods of residence with each parent.

Joint custody does not eliminate the obligation of both parents to provide financial support for the children.

Over the last few years the Courts have leaned more towards ordering joint custody except in the most strained circumstances.

Section 10 of the Divorce Act states that:

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

A parent who blocks contact to the children to the other parent unreasonably runs the risk of losing parenting of the children.

Often one parent will have the primary parenting of the children with the “access” parent seeing the children every second weekend as well as a specified evening during the week. The parties can still have joint custody, with the right to be involved in the making the major decisions associated with the children.

Parties often agree or the regime is ordered by the Court, in which the parties share parenting of the children on a specified regime. Child support is then governed by s. 9 of the Federal Child Support Guidelines. There is some discretion allowed by the Courts in this form of child support.

A rare Order in which one parent is given the sole decision-making authority and parenting for and of the children. The non-custodial parent may have access rights but no decision making authority.

Each parent has custody of one or more of their common children. The amount of child support is the difference between the amounts that each parent would pay if a child support order was sought against each of the parents.

If the circumstances which justified a particular support, custody or access order change, a person affected by the Order can ask a Justice to alter the Order to make it fit the new circumstances.

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