Access

What is access?

Access is the right of a parent who does not have custody to spend time with his or her children, which may include visits of several hours, days, a week, or longer. The law provides that a parent who is granted access to a child has the right to make inquiries and be given information as to the health, education, and welfare of the child. A parent who is granted access also has the right to know about the change of address of a child at least 30 days before the change takes place.

Last Reviewed: June 2006

Is access ordered by a judge?

It is preferable that parents agree about what access the parent without custody will have. This allows flexibility and can benefit both parents and children. An agreement can be put in writing and form part of the divorce order. Such an agreement is called a Parenting Plan and sets out as much as possible the joint arrangements that the parents can make for their children and how they are going to conduct their communications. If the parents cannot agree, then a judge can order access.

In considering access, the law states that the child should have as much contact with each parent as is consistent with the best interests of the child.

Last Reviewed: June 2006

I have often heard the phrase “reasonable access”. What does this mean?

Sometimes, parents will include reasonable access in a separation agreement or a court order may give the non-custodial parent reasonable access. This means access to be agreed upon by the parents and to allow a reasonable amount of time with the children for the access parent. This arrangement allows the parents flexibility, but it means that there must be some good will and co-operation between the parents to work together in the best interests of their children or it will not work.

Last Reviewed: June 2006

How much access is “reasonable access”?

What is reasonable will depend on the circumstances of each family, taking into account factors like the

• ages of the children,
• the school and extracurricular activities they are involved in,
• distances the access parent might have to travel,
• health concerns, and so on.

Generally speaking, if both parents live in the same city and the children are school age, a reasonable amount of access might be

• one night during the school week,
• every second weekend, and
• half of the summer holidays,
• with unlimited telephone access.

This is just an example; each family needs to work out what is reasonable for them.

Last Reviewed: June 2006

What would a judge order for access if the parents cannot agree?

It depends on the circumstances of the family. Generally, a judge might order that the access parent see the children for

• one visit during the school week,
• every second weekend,
• alternating Christmases, Easters and birthdays, and
• several weeks during the summer.

Last Reviewed: June 2006

Do the children have a say about access?

Children generally do not have a say in access. Very young children benefit from having a loving and stable relationship with both parents and should not be placed in a position of “choosing” whether or not to see the non-custodial parent. Certainly, this is a dangerous area for parents since the children may be used as pawns in the parents’ quarrels. Both parents should work to build strong relationships with the children. At a certain age, generally around 12, but also dependent upon the maturity of the child, a court may be willing to hear from a child about his or her preferences.

Last Reviewed: June 2006

Would a judge completely deny access to the parent without custody?

This happens, but it is extremely rare. A judge will only refuse to give a parent access to his or her children if the judge is convinced that the parent might harm the child physically, emotionally, morally, or in some other way. Sometimes, if a judge is worried about potential harm to a child, the judge will order supervised access rather than no access at all.

Last Reviewed: June 2006

What is supervised access?

Supervised access means that the access parent is only allowed to visit with his or her child in the presence of another adult.

Last Reviewed: June 2006

When might a judge order supervised access?

A judge might order supervised access in cases where a parent is mentally ill, has shown a past tendency to violence, or is addicted to alcohol or drugs. It might sometimes be ordered in the case of access to a baby when the access parent has little or no experience in caring for an infant.

Last Reviewed: June 2006

Who can supervise the access?

The judge might order that access be supervised by a responsible adult such as

• a grandparent,
• an aunt or uncle,
• a family friend, or
• sometimes a social worker or counsellor.

There are also supervised access centres in some provinces which are operated by volunteers or not-for-profit groups with government aid. Your provincial government department which looks after family law issues will know if supervised access centres exist in your area.

Last Reviewed: June 2006

Do I still have to pay child support if I don’t get to see my kids?

Yes. Canadian judges have made it clear that it is not acceptable to link child support and access rights.

It is wrong to refuse to pay child support for children because a parent is having trouble seeing the children. It is equally wrong to threaten a parent that he or she will not be allowed to see the children unless the money is paid.

In a perfect world, parents always pay child support on time and access visits always happen. In the real world, there is a temptation and a tendency by some parents to link access and child support together, but Canadian judges have repeatedly shown they will not tolerate it.

Last Reviewed: June 2006

What can I do if my spouse won’t let me have access to our children?

If you cannot work this out between you, the first step might be to ask your lawyer to work out a solution with your spouse’s lawyer. Many lawyers who practise family law now practise “Collaborative Family Law”. They endeavour to work together for the good of their clients and to try to make the process less adversarial. For more information on how to find a collaborative family lawyer in your area, contact your provincial Law Society. The Federation of Law Societies of Canada website contains links to provincial law societies.

You also have the option of trying mediation with a mediator specializing in family mediation issues. For more information, see Family Mediation Canada and provincial organizations such as [[Divorce#External_Resources|Alberta Family Mediation Society]. Your provincial government may have a program for those with low incomes to access mediation services.

If that doesn’t work, you may need to go to court to ask a judge for help in enforcing your access rights.

Last Reviewed: June 2006

What can a judge do to help enforce access rights?

A judge will listen to both sides to determine the problems that are preventing access from happening. The judge might make an order specifying access in very definite terms. If there has been a long history of one spouse ignoring court-ordered access, the judge could find the spouse in contempt of court for ignoring or flouting a court order.

Last Reviewed: June 2006

If I can’t get access, can I ask for custody?

Recently, there have been instances where judges have said that in cases where there has been a persistent, lengthy and unrepentant record of denying access, it can be grounds for taking custody away from that parent and giving custody to the access parent. This has occurred in a few cases where the circumstances are extreme.

Last Reviewed: June 2006

I read a newspaper article about two young boys who were making a court application for an order making their father come and visit them. Can that happen?

The situation you mention is very unusual and it doesn’t work in practice. Access that is ordered when a parent is not interested seems to defeat the purpose of access: to foster a loving relationship between a caring parent and a child.

Last Reviewed: June 2006

Are there any special laws that can help enforce my rights to access?

There might be — you should check the law in your own province. In Alberta, for example, the law provides for enforcement of access orders where access has been denied or where access is not being exercised. In serious cases where access has been denied, it is possible for the court to

• order extra time with the child to make up for time denied,
• order expenses to be reimbursed which have been incurred due to denying access,
• impose fines or prison sentences, and also
• enlist the aid of enforcement officers in finding the children.

Last Reviewed: June 2006