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Access
Access or Visitation Rights arise when a child lives with one parent and
goes to visit the other parent for a few hours, a weekend, or for longer,
such as during a winter or summer vacation. If a parent does not have
custody they may still have access visits with the child, so as to
continue to have a good relationship with the child.
A person who has been granted child access rights has the right to be kept
informed of the child’s health, welfare, education and religion. Without
custody however, that person does not have the right to make any decisions
on behalf of the child with regard to these matters. They also have the
right to be informed of a child’s name being changed at least 30 days
before the change is made, although written consent need not be obtained.
Access visits can either be unsupervised or supervised, depending on the
best interests of the child. Unsupervised is the usual kind of access,
where the child goes to visit the parent, and no-one else needs to be
present while the child and parent are together. Supervised access is only
ordered by the court where there is a concern about the safety of the
child through an act of domestic violence, the non-custodial parent has a
drug or alcohol problem or a psychiatric disability, or there is a risk of
abduction and where it is not in the best interests of the child that the
parent be alone with the child, and requires that the child visitations
take place in the presence of a third party, either in the presence of a
trusted person such as a friend or relative, or at an access centre set up
and run by the government
Custody is defined as having care, control and responsibility for the
well-being of a child. Child custody is a way of designating who has the
right to make decisions on behalf of the child(ren).
Child custody can be:
•Sole: where one parent is awarded custody of the child;
•Joint: where both of the child’s parents, share custody of the child,
and have equal rights and responsibilities for the child;
•Split: where the parties each have custody of a child of the marriage
(For example, the mother has custody of one or more children, who live
with her; and the father has custody of the other children, who live
with him.);
•Shared: where the parents have joint custody, and the child lives for
an equal length of time with each parent.
Just because the child(ren)
live(s) with one parent on a day-to-day basis does not mean that the other
parent does not have legal custody rights. A parent who has joint child
custody is still entitled to have all parental rights, for example:
receiving copies of their child’s school report cards, speaking to the
child’s teachers and/or doctors, and making decisions about the child.
If a parent does not have a legal custody, but has access rights to visit
with the child, they are entitled to all of the above information, they do
not get to be involved in making the decisions.
The only way a parent can not have child custody is either if they agree
to it in a separation agreement, or if a court orders that one parent not
be granted child custody. The court begins by assuming that the parents
should have joint custody, and if one person feels that it is not in the
child’s best interests for the parents to have joint custody, then they
must show the court why this is so. The responsibility is on the parent
asking for sole custody to show why the other parent ought not to have any
legal custody of the child.
Best Interests of the Child
In making a decision with regard to a child’s custody, the court’s focus
is on “the best interests of the child”. Parents’ rights are irrelevant.
Child custody and access are the right of the child, not the parent. Every
child has the right to have as much contact with each parent as is
consistent with the best interests of that child. The best interests of
the child are determined by a number of factors, including:
• love, affection & ties
between the child and each person seeking custody or access;
• ability and willingness of each parent to encourage a relationship
with the other; and
• permanence of the family unit that the child would live in.
Each custody case is
decided based on the individual facts of the case and the evidence
presented in that case.
Child Support
Dependant children have the right to financial support from their parents.
When the parents are no longer living together, the parent who does not
have custody of the child is required to pay child support to the parent
who has custody. The obligation to pay child support may continue even
after the “child” reaches 18 years of age if the child remains dependant –
i.e., if he or she is still in full-time school or is seriously ill or
disabled.
A person may have a legal obligation to pay child support payments even if
he or she was not married to the custodial parent. This may occur where
the relationship was common law or where a person is not the biological
parent but has historically stood in the place of the biological parent
for example in the case of a step-parent.
Child support calculations are made by consulting the
Federal Child Support Guidelines,
where the two variables are:
1. annual income of the
non-custodial parent, and
2. number of dependant children.
The guidelines assume that
the child spends the majority of his or her time with the parent who is
receiving the child support. The child support calculation also considers
whether the child has special expenses related to childcare, healthcare,
or other extracurricular and educational activities.
If the parent who has care of the children is receiving social assistance,
he or she has an obligation to make reasonable efforts to obtain child
support from the other parent. Any child support payments received is then
deducted from the total amount of social assistance given. A non-custodial
parent who is receiving social assistance is still required to pay child
support as determined by the federal guidelines.
The obligation to pay child support is enforced by the
Family Responsibility Office (FRO),
which is a branch of the Ministry of Community and Social Services. If the
child support order is made by the court, it will be automatically filed
with FRO. If the parties decide on the child support arrangement on their
own, the agreement must be registered with FRO to ensure enforcement of
the child support payments. The parent paying the support makes the
payments to FRO which sends the money to the parent who is to receive the
money. If a parent who is required to pay child support does not do so,
FRO can take certain actions against that person such as suspending the
person’s driver’s license.
If the child involved lives jointly with both parents, the issue of child
support may be handled in a different way. Under Section 9 of the federal
guidelines, an exception to the standard calculation of child support is
permitted when the child spends at least 40 per cent of his or her time
with each parent. This 40%+ arrangement is referred to as “shared
parenting”.
If
you are interested learning more about how Shameela Chinoy can help you,
please contact us.
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