Final Federal-Provincial-Territorial Report on Custody and Access and Child Support

Appendix C: Canadian Custody and Access Legislation

Canada

Governing Legislation

Divorce Act

Statutory Terminology

The Divorce Act uses the terms custody and access in reference to parental rights and responsibilities.  Custody includes "care, upbringing and any other incident of custody."[160]  Access is not specifically defined.  Section 16(5) of the Divorce Act provides that "unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child." No other terms are used in the Act in reference to parental rights and responsibilities.

Applications for Custody and Access Orders

Either or both spouses, or any other person, may apply for custody of, or access to, a child under the Divorce Act.  Section 16(1) of the Act provides that, "(a) court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage."> Third parties must obtain the leave of the court to pursue an application for custody or access.[161]

Court Orders

The Divorce Act permits the court to make interim and final (sole or joint) custody and access orders and enables it to impose terms, conditions and restrictions in connection with those orders.[162]

ALBERTA

Governing Legislation

Domestic Relations Act, Provincial Court Act

Statutory Terminology

Alberta legislation does not define custody or access.  The terms are used in the Domestic Relations Act and the Provincial Court Act.

The primary term used to define parental rights and responsibilities in Alberta law is guardianship.  The Domestic Relations Act is the main family law statute in Alberta.  It deals with custody and access in Part 7.  Part 3 of the Provincial Court Act allows the Provincial Court to make custody and access orders.

Guardianship is dealt with in Part 7 of the Domestic Relations Act, and in part 5 of the Child Welfare Act.  Part 5 of the Child Welfare Act gives the Provincial Court a jurisdiction over guardianship that is not restricted to child protection proceedings.

Section 49 of the Domestic Relations Act provides that, unless guardianship is limited by court order, each guardian

  • may act for and on behalf of a minor;
  • may appear in court and prosecute or defend an action or proceedings in the name of the minor;
  • has the care and management of the estate of the minor, whether real or personal…;
  • has the custody of the person of the minor and the care of the minor's education.

Guardianship has been interpreted as including all parental obligations related to the raising of children, and all of the powers required to meet those obligations.

The Alberta Court of Appeal has recently clarified the relationship between guardianship under the Domestic Relations Act and custody under the Divorce Act.[163]  Unless a court expressly removes powers of guardianship, the non-custodial parent, whether or not that parent is an access parent, retains all of the powers of guardianship, except those that are required by the custodial parent for purposes of day-to-day living.

Statutory Custody and Access Arrangements After Birth of a Child

Section 50 of the Domestic Relations Act provides that the mother is always a guardian of a child.  Guardianship of the father is not necessarily based upon cohabitation with the mother after the birth of the child, but on the nature and extent of the father's relationship with the mother.  If the father is a guardian, the mother and father are joint guardians, each able to exercise full powers of guardians, unless their authority is limited by court order.

A father is presumed to be a guardian of a child if:

  • the father was married to the mother at the time of the birth of the child;
  • the father was married to the mother of the child and the marriage was terminated by … a decree of nullity…or…a judgment of divorce granted not more than 300 days before the birth of the child; or
  • the father cohabited with the mother of the child for at least one year immediately before the birth of the child;
  • the father married the mother of the child after the birth of the child and has acknowledged that he is the father of the child.

If a father is not a guardian by virtue of meeting the criteria set out in the presumptions, he may apply to the Court to be appointed a guardian.  Unless the court qualifies the guardianship, the father will enjoy all of the rights of guardianship.

The Court of Queen's Bench may also make orders for custody and access pursuant to sections 58 and 59 of the Domestic Relations Act.  The Provincial Court may make custody and access orders pursuant to section 18 of the Provincial Court Act.

Applications for Custody and Access Orders

Applications for custody and access can be made by parents and children[164] and by grandparents or grandchildren.[165]

Court Orders

The legislation does not specify the particulars of orders.  It simply states that the court can make orders of guardianship, custody orders and access orders.  The content of orders can vary from the general to the very specific.  In divorce cases, orders for corollary relief are generally made under the Divorce Act rather than under provincial legislation.

BRITISH COLUMBIA

Governing Legislation

The Family Relations Act

Statutory Terminology

The Family Relations Act uses the terms custody and access.  Neither is defined.  The FRA also refers to guardianship, which is defined by referring to old English statutes.  Guardianship refers to all the rights, duties and powers a person may have over a child.  Custody is a more limited concept and generally refers to the day-to-day care of a child.

Statutory Custody and Access Arrangements After Birth of a Child

Generally, a child's guardian will be one or both of his or her parents.  Section 27 of the Act deals with parental guardianship rights.  It provides that where a mother and father are living together, whether married or not, they are joint guardians of the child unless a court orders otherwise.  Where the mother and father separate following a common-law relationship or marriage, section 27(2) provides that they are joint guardians of the estate of the child and the parent who usually has care and control of the child is the sole guardian of the person of the child.  Where the parents have never lived together or shared joint guardianship, the mother is the sole guardian of the child.  The same statutory regime also applies to custody.

Section 34 provides that while living together (whether married or not) the parents are joint custodians.  However, upon separation, or if the parties have never lived together, the person who has care and control of the child is the sole custodian until a court orders otherwise.  Third parties may also be appointed as a child's guardian either by the parents (e.g. appointment under a will) or by the court.  If a child has no guardian, the Director under the Child, Family and Community Service Act is guardian of the person of the child and the Public Trustee is guardian of the estate of the child.

Applications for Custody and Access Orders

Section 35 provides that any person, including grandparents, may apply for a custody or access order.

Court Orders

It is common for courts to award sole custody to one parent and joint guardianship, where the guardianship rights are defined.  Courts also have the ability to award joint custody and joint guardianship.  Parents may also reach their own agreements about custody and guardianship.  These agreements may be registered with the court and enforced as if they were a court order.  In Divorce Act proceedings, courts make custody orders under that Act.  Under the Family Relations Act, a custody order made under the Divorce Act gives the custodial parent guardianship of the child as well, unless the court orders otherwise.  However, frequently a Family Relations Act claim for guardianship is joined with the Divorce Act proceeding so that the court can make a guardianship order at the same time as it makes a custody order.

MANITOBA

Governing Legislation

The Family Maintenance Act

Statutory Terminology

The Family Maintenance Act uses the terms custody and access with reference to parents' legal rights and responsibilities for their children vis-à-vis each other.

Custody is defined in the act as "the care and control of a child by a parent of that child."[166]  Access is not specifically defined.  The actstates that the court can make an access order, "for the purpose of visiting the child and fostering a healthy relationship between parent and child." The actprovides that unless a court orders otherwise, the non-custodial parent "retains the same right as the parent granted custody to receive school, medical, psychological, dental and other reports affecting the child."[167]  It further clarifies that this is "a right to be provided with information only and is not, unless a court orders otherwise, a right to be consulted about or to participate in the making of decisions by the parent granted custody."[168]

The Child and Family Services Act uses the terms guardianship and access in relation to third parties.  Guardianship is not defined per se, but guardian is defined as a "person other than a parent of a child who has been appointed guardian of the person of the child by a court of competent jurisdiction or to whom guardianship has been surrendered…."[169]

Guardianship of the estate of the child is governed by The Infants' Estate Act.  Section 9 of that act sets out the authority of a guardian, which includes control of real property, management of personal property, representing the child in any litigation affecting the child's estate and expending money for the child's benefit.

Statutory Custody and Access Arrangement after Birth of a Child

Where the parents cohabit after the birth of their child, the act provides that the "rights of parents in the custody and control of their children are joint," i.e. they have joint custody, until a court orders otherwise.[170]

Where the parents do not cohabit after the birth of their child, the actprovides that "the parent with whom the child resides has sole custody and control of the child".  The other parent does not have any right to access, until a court orders otherwise.[171]

Applications for Custody and Access Orders

Either parent may apply for custody of, or access to, a child.

Third parties, including grandparents and step-parents, cannot apply for custody or access under The Family Maintenance Act.  If a third party wants to assume responsibility for the upbringing of a child, the party would either apply for an order of guardianship (which would leave the parent-child relationship intact) or apply to adopt the child (which would sever the former parent-child relationship and make the party the new parent of the child.)  Guardianship applications are made under The Child and Family Services Act.

A third party who is a member of the child's family (including grandparents) may apply for access under The Child and Family Services Act.  That statute also allows a non-family third party to apply for access "in exceptional circumstances."[172]

NEW BRUNSWICK

Governing Legislation

The Family Services Act

Statutory Terminology

The Family Services Act (FSA) uses the terms custody and access, but neither term is defined.

Statutory Custody and Access Arrangements After Birth of a Child

Section 129(1) of FSA provides that unless otherwise agreed in writing or ordered by the court, where the child has more than one parent, both parents jointly have custody of their child.

Parent is defined to mean a mother or father and includes a guardian and a person with whom the child ordinarily resides who has demonstrated a settled intention to treat the child as a child of his or her family.  However, it does not include a foster parent, a natural or adopting parent whose rights with respect to the child have been terminated, or a natural father who is not married to the mother, unless:

  • he has signed the birth registration form (s. 9 Vital Statistics Act), or
  • he has filed with the Registrar General of Vital Statistics a statutory declaration along with the mother (s. 105 FSA), or
  • he has been named the father in a declaratory order (Part VI FSA), or
  • he is person with whom the child ordinarily resides who has demonstrated a settled intention to treat the child as a child of his family.

Applications for Custody and Access Orders

Section 129(2) provides that on application the court may order that either or both parents, or any person, either alone or jointly with another, shall have custody of a child, on the basis of the best interests of the child.  In addition, s. 129(3) provides that on application the court may order that either parent or any person shall have access to a child, whether or not an order of custody has been made.

Court Orders

In the FSA, custody order is defined to mean any order of any court with respect to the custody, care or control of a child.  The orders may be subject to such terms and conditions as the court determines, such order to be made on the basis of the best interests of the child.  The end result is a broad discretion for the judge to define custody as the judge sees fit.  It can include residence, day-to-day decision making, and decision making regarding health, education and religion and cultural heritage.  In Divorce Act proceedings, the courts will also make custody orders.

NEWFOUNDLAND AND LABRADOR

Governing Legislation

Children's Law Act

Statutory Terminology

The Children's Law Act (CLA) uses the terms custody and access.  Neither term is defined.

Subsection 26(1) states that the father and the mother are equally entitled to custody of the child.  Subsection 26(2) states that a person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and shall exercise those rights and responsibilities in the best interests of the child.

Subsection 26(6) states that the entitlement to access to a child includes the right to visit and be visited by the child and the same right as a parent to make inquiries and be given information as to the health, education and welfare of the child.

Part IV of the CLA uses guardianship to describe the person who is a guardian of the property of a child.  Subsection 57(1) states that the parents of a child are equally entitled to be appointed as guardians of the child's property.

Statutory Custody and Access Arrangements After Birth of a Child

The CLA draws no distinction between parents who cohabit after the birth of their child, and those who do not.  Subsection 3(1) states that a person is the child of his or her natural parents, and his or her status as their child is independent of whether he or she is born inside or outside marriage.

Subsection 26(4) states that where the parents of a child live separate and apart, and the child lives with one of them with the express or implied consent of the other, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access is suspended, until a separation agreement or order otherwise provides.  Therefore, by default the parent with de facto custody of the child has custody, and the other parent has access, unless there is no consent or acquiescence.

Applications for Custody and Access Orders

Section 27 of the CLA states that a parent of a child or other party, as specified in paragraphs 69(4)(b) to (d), may apply to a court for an order respecting custody of or access to the child or determining an aspect of the incidents of custody of the child.

Subsection 69(4) refers to a grandparent of the child, a person who has demonstrated a settled intention to treat the child as a child of his or her family, a person who had the actual care and upbringing of the child immediately before the application and another person whose presence as a party is necessary to determine the application.

The merits of any application for custody or access are to be determined on the basis of the best interests of the child.

Court Orders

Section 33 of the CLA states that the court to which an application is made under s. 27

  • by order may grant the custody of or access to the child to one or more persons
  • by order may determine any aspect of the incidents of the right of custody or access, and
  • may make an additional order that the court considers necessary and proper in the circumstances.

Section 40 allows a court to give directions for the supervision of custody or access.

Section 42 permits a court to make an order restraining harassment.

The courts usually grant custody to one parent and access to the other.  In some instances, the parents are granted joint custody with the principal residence of the child being with a designated parent.  The parent who is granted custody has the right to make the day-to-day decisions including those dealing with health, education and religion.

In Divorce Act proceedings, the courts will make custody orders under that legislation.

NORTHWEST TERRITORIES

Governing Legislation

Children's Law Act

Statutory Terminology

Neither custody nor access is specifically defined in the Children's Law Act but they are described.  Section 18(2) provides that a person entitled to custody has "the rights and responsibilities of a parent in respect of the person of the child." Section 18(6) provides that the entitlement to access to a child "includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child."

The term "guardian of a child" is also used in this legislation and is defined to mean "a guardian of the estate of a child."

Statutory Custody and Access Arrangements

The act provides that a father and mother of a child are equally entitled to custody.  However it further provides that the right of a parent to exercise the entitlement and incidents of custody are suspended until an agreement or order provides otherwise when the parents are living separate and apart and the child lives with the other parent or the parent has consented (expressly or by implication) or acquiesced in the other parent having sole custody of the child.  This would apply whether or not the parents lived together after the child's birth.  The entitlement to access is not suspended in these circumstances.

Applications for Custody and Access Orders

A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspects of the incidents of custody of the child.  The Act does not specify who the "other person" might be which appears to leave it open to grandparents or any other person to bring an application.

Court Orders

The court can grant custody or access to one or more persons, can determine any of the aspects of the incidents of custody or the rights to access and make additional orders it considers necessary and proper in the circumstances.  There are provisions for specifying dates and times of access if necessary.

In practice the courts make orders that use the language sole custody or joint custody.  In the latter case the court usually specifies that primary care and control be assigned to one parent unless there is a case of shared parenting.

NOVA SCOTIA

Governing Legislation

Maintenance and Custody Act (formerly called the Family Maintenance Act)

Statutory Terminology

The Maintenance and Custody Act (MCA) uses the terms custody and access.  Neither term is defined.  Subsection 18(4) of the act states that the father and mother of a child are joint guardians and are equally entitled to the care and custody of the child unless otherwise provided by the Guardianship Act or ordered by a court of competent jurisdiction.

Subsection 18(5) of the act provides that in any proceeding concerning care and custody or access and visiting privileges in relation to a child, the court has to apply the principle that the welfare of the child is the paramount consideration.

Section 2 of the MCA defines guardian as a head of a family and any other person who has in law or in fact the custody or care of a child and parent, in the case of a child of unmarried parents, as a person who has been ordered by a court of any law district to pay maintenance for the child. 

Statutory Custody and Access Arrangements After Birth of a Child

The MCA draws no distinction between parents who cohabit after the birth of their child as opposed to those who do not.  As stated previously, both parents are equally entitled to care and custody of the child.  However, practically speaking, where there is no court order, the parent with whom the child resides has de facto custody of the child and has the right to make all day-to-day decisions with respect to the child.

Applications for Custody and Access Orders

Subsection 18(2) of the MCA states that a parent or guardian or other person with leave of the court may make an application for custody of, or access to, a child.  This means that third parties, including grandparents and step-parents, can apply for custody or access provided they obtain leave of the court first.

Court Orders

Subsection 18(2) of the MCA provides that the court may make an order that a child be placed in the care and custody of a parent or guardian or authorized person or respecting access and visiting privileges of a parent or guardian or authorized person.  The Act does not use terms such as joint custody or sole custody.  The court is free to fashion an order in any form provided that it applies the principle that the welfare of the child is the paramount consideration.

Nova Scotia courts usually grant sole custody to one parent and access to the other.  In some instances, the parents are granted joint custody (which means joint decision making and the right of the access parent to obtain information relating to the child) with the principle residence of the child being with one parent or the other.  The parent who is granted sole custody has the right to make the day-to-day decisions relating to the child.

In Divorce Act proceedings, the court will make custody and access orders under the federal legislation.  However, typically, parents will initially obtain custody and access orders under provincial legislation prior to commencing divorce proceedings.

Under the MCA parties have the ability to enter into an agreement with respect to custody and access arrangements relating to their child.  That agreement, when registered with the court, has the effect of a court order.  This is provided for in s. 52 of the act.

NUNAVUT

Governing Legislation

The Children's Law Act (Nunavut)

Statutory Terminology

The Children's Law Act uses the terms custody and access, neither of which are defined.  A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child.  Entitlement to access includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.  The term "guardian for a child" is defined as "a guardian of the estate of a child."

Statutory Custody and Access Arrangements After Birth of a Child

The father and the mother of a child are equally entitled to custody.  The right of a parent to exercise the entitlement to custody of a child and the incidents of custody, but not the entitlement to access to the child, is suspended until a parental or separation agreement or a court order otherwise provides where:  (a) the parents of the child live separate and apart and the child lives with the other parent; and (b) the parent has consented, either expressly or by implication, or acquiesced to the other parent having sole custody of the child.

Applications for Custody and Access Orders

Pursuant to s. 20, a parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or for determining any aspect of the incidents of custody of the child.  An application, if made by a person other than a parent, may not be made without leave of the court.

The act specifically states that applications will be determined in accordance with the best interests of the children, with a recognition that differing cultural values and practices must be respected in that determination.

Any person, including a child, may apply to the court for an order respecting guardianship for the child.  A guardian has charge of and is responsible for the care and management of the child's estate and, as guardian, shall act in the best interests of the child.

Court Orders

The court, on application pursuant to s. 20, may grant custody of or access to the child to one or more persons, and may determine any aspect of the incidents of custody or the right to access and may make such order in respect of the determination as the court considers appropriate.

ONTARIO

Governing Legislation

Children's Law Reform Act (CLRA).

Statutory Terminology

The CLRA does not contain an explicit definition of custody, but it does state that a father and mother are equally entitled to custody[173] and that "a person entitled to custody has all the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child."[174]

The CLRA does not explicitly define access but does state "the entitlement to access to a child includes the right to visit and be visited by the child and the same right as a parent to make inquiries and be given information about the health, education and welfare of the child"[175]

The CLRA uses guardianship to describe the person who is a guardian of the property of a child.[176]  Parents are equally entitled to be appointed guardian of the child's property.

Statutory Custody and Access Arrangements After Birth of a Child

The CLRA draws no distinction between parents who cohabit after the birth of their child, and those who do not.  However, s. 20 (4) says "where the parents of a child live separate and apart, and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement to custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides." Therefore, by default the parent with de facto custody of the child has custody, and the other parent has access, unless there is no consent or acquiescence.

Applications for Custody and Access Orders

Under s. 21 of the CLRA, "a parent or any other person may apply to a court for an order respecting the custody of or access to the child or determining any aspect of the incidents of custody of the child."> There is no limitation on who can apply, except the best interests of the child.

Court Orders

The court orders that are available are defined under s. 28.  It provides:

The court to which an application is made under s. 21,

  • by order may grant custody of or access to the child to one or more persons,
  • by order may determine any aspect of the incidents of the right of custody or access, and
  • may make such additional order as the court considers necessary and proper in the circumstances.

In addition, there are specific provisions for the supervision of access (s. 34), and restraining harassment (s. 35).

In practice, the courts make many kinds of orders, including orders that do not use the terms custody and access.  Lawyers working for non-custodial parents prefer the use of joint custody terminology, because the default position in the legislation is one custodial, one access parent.  There is no standardization of the terms used by the courts.  Most commonly the order is expressed as custody and access or joint custody with defined periods of residence or care and control.  In divorce proceedings it is not readily apparent from many orders which legislation forms the basis of the order, since the terms custody and access are used in both the Divorce Act and the CLRA.  If a Divorce Act matter proceeded to trial, the court would likely apply the Divorce Act tests and terminology.

PRINCE EDWARD ISLAND

Governing Legislation

Custody Jurisdiction and Enforcement Act

Statutory Terminology

The act defines custody to mean:

…the rights and responsibilities of a parent in respect of the person of the child, including

  • the right to care and control of the child;
  • the right to direct the education and moral and religious training of the child, in the best interests of the child.

The act does not specifically define access but provides that "(t)he entitlement to access to a child includes the right to make reasonable inquiries and to be given information as to the health, education and welfare of the child."[177]

Statutory Custody and Access Arrangement after Birth of a Child

The act provides that except "as otherwise ordered by a court, the father and the mother of a child are joint guardians of a child and are equally entitled to custody of the child."[178]  The act does not specifically set out the custodial arrangement where the parents do not cohabit after the birth of the child, but it appears that the custodial rights of the parent with whom the child does not reside are suspended until an agreement or court order provides otherwise.  Section 3(4) provides that:

Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement to custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or court order otherwise provides.

Applications for Custody and Access Orders

A parent of a child or any other person may apply to a court for an order respecting custody of, or access to, the child or determining any aspect of the incidents of custody of the child.

Court Orders

The court may grant custody or access to one or more persons and may by order "determine any aspect of the incidents of the right to custody or access..."[179]

QUEBEC

Governing Legislation

Civil Code of Québec

Statutory Terminology

The Civil Code uses the terms parental authority and custody.  Neither is specifically defined.  Parental authority is a broader concept than custody.  It includes the rights and duties set out in Article 599 of the Civil Code, "the rights and duties of custody, supervision and education"> and the duty to "maintain" the children, and other responsibilities pursuant to other articles of the Civil Code and other Quebec legislation.  Article 600 provides that "The father and the mother exercise parental authority together."

Custody is a physical concept and relates to residence and day-to-day decision making.  The custodial parent has the right to determine the residence of the child and make the day-to-day decisions, but the non-custodial parent "retains the right to participate in major decisions about the child's upbringing as a consequence of the exercise of parental authority."[180]  Article 605 provides that "Whether custody is entrusted to one of the parents or to a third person, and whatever the reasons may be, the father and the mother retain the right to supervise the maintenance and education of the children, and are bound to contribute thereto in proportion to their means." As Goubau comments, "the distinction between 'custody' and 'authority' is not completely foreign to the law of some Canadian provinces in which some legislation (in Ontario, for example) already makes a distinction between 'custody' and 'guardianship'.  The latter in some ways is more akin to the civil law notion of parental authority."[181]  The Civil Code does not use the term access.

Statutory Custody and Access Arrangement after Birth of a Child

The Civil Code provides that parents jointly exercise parental authority.  The Civil Code makes no distinction between situations where the parents cohabit after the birth of the child and where they do not.

Applications for Custody and Access Orders

Custody may be awarded to either parent or to a third party. [182]

With respect to grandparents, Article 611 states:

In no case may the father or mother, without a grave reason, interfere with personal relations between the child and his grandparents.  Failing agreement between the parties, the terms and conditions of these relations are decided by the court.

Court Orders

The Civil Code provides that when the court makes a decision relating to separation, it disposes namely of the custody arrangements in the children's "interest and in respect of their rights, taking into account the agreement made between the spouses, where such is the case."[183]  Every decision concerning children shall be taken in their interest and in respect of their rights.  The Civil Code provides the criteria to be considered when making these decisions:  the moral, intellectual, emotional and physical needs of the child, as well as the child's age, health, personality and family environment, and the other circumstances (Article 33).  Article 521 provides that divorce has the same effects in respect of children as separation from bed and board.  When awarding custody to one parent, the court generally awards access rights to the other.  The court may also award parents shared custody, in which children alternate between both parents' households.  The most common solution is to award custody to one parent and access to the other according to terms set out by the court regarding frequency and length of visits. [184]

SASKATCHEWAN

Governing Legislation

The Children's Law Act, 1997

Statutory Terminology

The Children's Law Act, 1997 uses the terms custody and access for determination of parental rights and responsibilities.  Section 2(1) of the act defines custody to mean personal guardianship of a child and includes care, upbringing and any other incident of custody having regard to the child's age and maturity.

Access is not defined by the act.  Section 9 of the act provides that, in making, varying or rescinding an order for access the court shall have regard only for the best interests of the child.  Also, there is no consideration of past conduct of any person unless it is relevant to the ability of that person to care for the child.

The authority to make major decisions regarding health, education and religion rests with the custodial parent.  Section 9(2) of the act provides that "unless otherwise ordered by the court, a parent who is granted access to a child has the same right as the custodial parent to make inquiries and be given information concerning the health, education and welfare of the child." This right to information, unless the court orders otherwise, is not a decision-making power or a right to be consulted about or to participate in the making of decisions by the custodial parent.

In reference to parental responsibility the act also uses the term "guardian of the property of a child." Section 30 of the act provides the parents of a child are joint guardians of the property of the child with equal rights, powers and duties, unless otherwise ordered.

Statutory Custody and Access Arrangements After Birth of a Child

Section 3(1) of the act states that unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of a child are joint legal custodians of the child with equal rights, powers and duties.

Section 3(2) states that where the parents of a child have never cohabited after the birth of the child, the parent with whom the child resides is sole legal custodian of the child.

Section 3(3) recognizes that parents may enter an agreement to vary their status as joint legal custodians of a child and specify each parent's rights, powers and duties.  Hence, the act creates a legal presumption that parents are joint legal custodians of a child unless one parent has never resided with the child and other parent.  The presumptions of the act may be inapplicable if the court orders otherwise or if the parents reach a different agreement.

Applications for Custody and Access Orders

Section 6(1) of the act provides that, notwithstanding subsections (3) to (5), a parent, or other person having in the opinion of the court, a sufficient interest, may apply for an order granting custody of, or access to, a child.  Although they would be included, the act does not limit applications to grandparents but addresses applications from other third parties provided they can establish a sufficient interest in the child.

Court Orders

The act provides that when making an order of custody or access, the court, in the manner and on the conditions that the court considers appropriate, may provide for the division and sharing of parental responsibilities.  Sections 8 and 9 provide that when making, varying or rescinding an order for custody or access of a child the court shall have regard only for the best interests of the child.  The sections include lists of considerations in determining the best interests.

In practice, court orders or agreements generally provide for custody, joint custody or joint custody with primary residency.  The latter, "joint custody with primary residency" refers to joint decision making on the major issues but not on the day-to-day decisions.  It clarifies the child's primary residence.  Joint custody refers to joint physical custody with the child having no one primary residence and provides for joint decision making.  Custody refers to residence and all decision making including major decisions and day-to-day decisions. 

YUKON

Governing Legislation

Children's Act

Statutory Terminology

Custody is defined in s. 28(1) of the Children's Act as including "the right to care and nurturance of the child, the right to consent to medical treatment for the child, the right to consent to the adoption or the marriage of the child, and the responsibilities concomitant with those rights, including the duty of supporting the child and of ensuring that the child is appropriately clothed, fed, educated and disciplined, and supplied with the other necessaries of life and a good upbringing." Care is defined to mean "the physical care and control of a child."

Access is not defined, but described as including "The right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child." The act also specifies that "the parent not having care of a child shall have (a) the right to consent to the adoption or marriage of his minor child, and (b) the right to give consent to urgent medical treatment for his or her child where the consent of the parent entitled to the care and custody of the child cannot expeditiously be obtained."[185]

Part 2-Division 4 of the Children's Act deals with guardianship.  Section 60 sets out the rights and responsibilities of a guardian.  A guardian "has charge of and is responsible for the care and management of the property of the child and shall act in the best interests of the child."[186]  If there is more than one guardian, the guardians are jointly responsible for the care and management of the property of the child."[187] (s. 60(2))

Statutory Custody and Access Arrangement after Birth of a Child

Section 31(1) provides that, except as otherwise provided in that part of the legislation, "the father and the mother of a child are equally entitled to custody of the child." Section 30(4) states that "In any proceedings in respect of custody of a child between the mother and the father of that child, there shall be a rebuttable presumption that the court ought to award the care of the child to one parent or the other and that all other parental rights associated with custody of that child ought to be shared by the mother and the father jointly."

Where the child's parents "live separate and apart and the child lives in the care of one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement to custody and the incidents of custody, but not the entitlement to access, is vested in the parent with care of the child until an agreement between the parents or an order otherwise provides."[188]

Under s. 61(1), while cohabiting, the father and the mother of the child are equally entitled to guardianship and are the guardians of the child.  Where the mother and father do not cohabit, the parent who has the lawful care and custody of the child is also the sole guardian of the child unless the parents agree otherwise, the guardian appoints someone else to exercise those rights, or the court appoints someone else.[189]

Applications for Custody and Access Orders

Either parent or "any other person" may apply to the court for a custody or access order.[190]

Court Orders

The court may grant custody or access to one or more persons.  The courts generally make orders for joint custody in the sense of joint decision making unless there is good evidence that it is not in the best interests of the child to do so.  There are increasing numbers of orders that provide for shared "care" of the child as well.  If one parent is awarded sole custody there will often be an order for joint guardianship.

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