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Who can get access to and spend time with my child?

Generally, it's best for your child to spend time with you and your partner after you separate or divorce. This doesn't mean your child has to spend an equal amount of time with both of you. But it should be enough time to allow your child to have a meaningful relationship with both of you.

If your child lives mainly with you, your child's primary residence is with you, and your partner usually has access.

Access is the time a parent spends with a child they usually don't live with. Access can be on a fixed schedule, such as every other weekend, or on a flexible schedule, such as whenever the parents agree.

Access can be supervised or unsupervised. If you have supervised access, this means there is someone watching while the access parent visits with their child.

Access includes the right to get information on the child's health, education, and well-being. But for some information, such as hospital records, the parent with custody may need to give their written permission first.

In some cases, other people might get access, such as a step-parent, grandparent, or other relative. Or, it could be someone outside the family who has a close relationship with the child.

If you and your partner agree on custody and access arrangements, you can put what you've agreed on in an agreement.

If you can't agree, you can ask a family law professional like a mediator to help you work out an agreement. Or, you can go to court and ask a judge to decide.

The judge uses a legal test called the best interests of the child to make decisions about custody, access, and parenting. Judges usually assume it's better for a child to have a relationship with both parents after they separate or divorce.

Child support is separate from access

The right to child support and access are two different issues. They are both rights of the child. A parent cannot be denied access to their child because they do not pay child support. And a parent who does not have access may still have to pay child support.

You can only refuse to allow access in limited situations, such as if you're afraid for your child's safety. You may have to call your local children's aid society if you believe your child is being abused by your partner or someone in their home. If you're in this situation, get help right away.

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1. Think about the different kinds of access

Think about what is best for your child and the kind of access arrangement that will work best for your family. The kinds of access are:

Fixed access

Access can be set out in a specific and detailed schedule. This is often called "fixed access" or "specified access". It may cover things like how much time a child spends with a parent on a weekly basis and also for holidays, long weekends, birthdays, and religious events.

An access schedule may include details like who is responsible for picking up or dropping off the child, the place where the child is picked up or dropped off, and other terms.

Reasonable access

Access can be left open and flexible if the parents are able to co-operate. This is sometimes called "reasonable access" or "liberal and generous access". This allows the parents to informally make arrangements that can easily be changed if the situation changes.

Supervised access

In some situations, access may need to be supervised by another person. For example, supervised access might be ordered if the parent with access has:

  • a drinking or drug problem
  • abused the child in the past
  • abused the other parent in the past
  • threatened or tried to take the child away from the other parent

The person who supervises might be a relative, friend, social worker, worker at a supervised access centre, or children's aid worker.

The Government of Ontario has a supervised access program.

No access

In the most extreme cases, a parent might not have any access to the child. For example, when serious child abuse has been proven, or where the child's safety cannot be protected.

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2. Talk to your partner

You and your partner can try to agree on access without going to court. You can talk to your partner on your own, with the help of someone both of you trust, or with the help of a lawyer or mediator.

If there are no issues of violence or abuse and your partner is capable of caring for your child, you should come up with an access schedule that gives your child meaningful contact with both of you.

Even if you're angry with your partner after separation, it's important to keep your child out of the conflict. Focus on what is best for your child and what they need from you.

A parenting plan checklist can help you with the things you may have to think about. Not everything on the checklist may apply to your situation.

Some of the things you have to decide on are:

  • how holidays and special occasions like birthdays are shared
  • how to discuss things to avoid conflicts
  • how often your child communicates with each of you, whether by telephone, email, skype, or text
  • who is responsible for picking up and dropping off your child between each of your homes
  • the place your child is picked up or dropped off, such as each of your homes, your child's school or daycare, a relative's home, or a public place
  • how changes to the access schedule are made
  • how to deal with changes in the future

These decisions depend on many factors including:

  • how old your child is
  • where your child goes to school or daycare
  • what your physical living space is like
  • how close you and your partner live to each other
  • your work hours
  • who can care for your child when you are at work
  • whether anyone else lives with you
  • whether your child has any special needs

If your child is older and emotionally mature, you and your partner can ask them what they want. Sometimes children do not want to be part of these decisions. But if they do and you think they are able to give their views and wishes freely, then you can discuss their choices with them.

As children get older, they often want to spend more time with their friends. It makes things easier for your child if you can be flexible and work with their plans.

If you agree on issues related to your children, you can make a parenting plan. A parenting plan can be an informal arrangement between the two of you, or it can be part of your separation agreement.

Your parenting plan or separation agreement has to follow certain rules to make it binding and enforceable under the law. This means your agreement is made in a way that allows the court to order you or your partner to do what the agreement says, if either of you stop following it.

Legal Aid Ontario (LAO) has a service to help people with separation agreements. If your income is low enough, LAO covers the cost of up to 10 hours with a family lawyer to help you negotiate and draft a separation agreement.

Talking to your partner may not be an option where there is a history of partner abuse. 

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3. Get help from a family law professional

If you and your partner cannot agree on access, you can try getting help from a family law professional. These are neutral people who are trained to work with both of you to help you reach an agreement or make a decision for you.

Family law professionals can work in:

  • mediation
  • arbitration
  • mediation-arbitration
  • collaborative family law

All of these processes are sometimes called alternative dispute resolution (ADR). They help solve your issues without going to court. Deciding which process is best for you depends on the facts of your situation and what you want. For example, a mediator doesn't make decisions for you, but an arbitrator does.

Some of the reasons to use ADR instead of going to court are:

  • You have more control over what happens to your case.
  • It can be faster and cheaper.
  • It can be less stressful.
  • It takes place in a private setting.

But, there are some situations where it may be better not to use ADR, such as:

  • There is a history of family violence, mental illness, or drug abuse.
  • You can't talk to your partner.
  • You can't work cooperatively with your partner.

Each family court location in Ontario offers subsidized mediation services. You can get up to 8 hours of mediation for a fee that is based on each person's income. You can use this service whether or not you're in court. If you're already in court, you can get up to 2 hours of mediation at the court free of charge.

In some areas, Legal Aid Ontario has a mediation service that is free if you or your partner's income is low enough. These mediators help with issues of custody, access, parenting plans, travel and vacation plans, parent communication, and child support.

You can also find mediators who offer their services at lower rates through JusticeNet. JusticeNet is a not-for-profit that helps people in Ontario whose income is too high to get legal aid and too low to afford standard legal fees.

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4. Go to court

If you and your partner still cannot agree on access even with the help of a family law professional, or if this is not the right option for you, one of you have to start a family law court case.

Going to court can be a complicated process and it can take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues. This family law court process flowchart explains each step in a family law court case.

A judge looks at the facts of your situation and the best interests of the child test to make decisions about custody, access, and parenting. Judges usually assume it's better for a child to have a relationship with both parents after they separate or divorce.

Some of the things a judge looks at are:

  • the relationship between each parent and the child
  • the emotional ties between each parent and the child
  • how long the child has lived in a stable environment
  • each parent's plan for the child's care and upbringing
  • each parent's ability to care for the child
  • in some cases, the child's views and wishes
  • if there has been abuse against any family member or any child

The judge doesn't look at the past behaviour of a parent unless it affects their ability to parent. For example, a judge won't consider which parent was responsible for breaking up the family. But the judge must consider if a parent was ever violent or abusive towards the other parent or children.

You can talk to a lawyer who can help you understand your rights and responsibilities toward your children, and help you through the process.

If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

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September, 2015