The court generally will almost always grant the non-primary care parent access/parenting time and will maximize this time as long it is in the child’s best interest. This usually takes the form of weekly time with the child but can include larger blocks of holiday time as well. Even where a parent is accused of serious wrongdoing like physical or emotional abuse of a child, access and contact to the child by a parent will usually be continued with some other person supervising the visitation to ensure child safety. Again these situations should be carefully reviewed with a family law lawyer.
Interim vs. Final Applications for Custody/Guardianship and Access/Parenting Time
If parties cannot agree on custody/guardianship responsibilities and access/parenting time and the matter goes to court there are usually two stages at which access is considered. One is on an interim or temporary basis pending trial and the other is at trial.
Generally trials are somewhat similar to what you see on television and in the media. Witnesses are called and give first hand evidence. The judge then listens to submissions and makes an Order. At trial a court will consider all factors both long and short term relating to custody and access and then make the best decision based on the evidence for the child. As trial dates take many months to obtain and people often need certain access and custody issues resolved quickly, the courts have developed procedures for requesting temporary and interim relief of matters (like custody and guardianship) before trial. In Supreme Court this involves the swearing of affidavits from parents and supporters as to who should have care of the children and/or access/parenting time. In Provincial Court evidence on interim applications can be received by the court through the use of witnesses and/or affidavits.
Unlike a final trial, on interim applications the “status quo” or parenting situation prior to separation is usually given most weight because the judge dealing with these applications does not see the witnesses testifying first hand and the assumption is a caring parent would not allow their child to be harmed and the court can therefore conclude that because the parent agreed to a situation prior to separation they must have felt it was best for the child and as such to promote stability for the child it is usually continued until trial.
The exception to this principal is where maintaining the “status quo” would place the child at risk. An example would be if the primary caretaker of a child prior to separation began to become violent or developed a sickness, like alcoholism, which prevented them from looking after the child. Sometimes the court will make a temporary determination for interim, custody and access pending receipt of additional information, from the parties themselves or from a third party appointed to assist the court. This generally is done where the parenting situation, or the child situation, is dynamic in the sense that there may be developing issues like a child with special educational needs, a disability, or parents who are involved in various matters related to abuse or problems communicating which require third party intervention by way of a custody/guardianship assessment to assist the court. These situations, however, are the exception and not the rule.
Custody and Access Reports/Section 211 Reports
Pursuant to the Rules of Court, and Section 211 of the Family Law Act the court has jurisdiction to appoint a qualified third party to give an investigation for the court into one or more of the issues related to custody and access. Although it is not mandatory, such reports are most often conducted by child psychologists or physiatrists agreed to by the parties or appointed by the court. Care should be taken in agreeing to such an assessment. Firstly, the production of these reports are often time consuming and are quite expensive. They often cost $6,000.00 to $8,000.00 to produce currently if they cover all custody issues. As well, most often, the parties and older children will be interviewed by the psychologist more than once.
Such a process can be emotionally difficult both for the children and for the parties themselves. As well, although the opinion of the report author is not the final determination of what the court will order as this is the function of the judge dealing with the case, it is very seldom in practice that courts depart from the recommendations of the report author involved. The reason is simple, the report author has specialized qualifications that the court does not have and has usually spent significantly more time than the court with the parties and children before the court. Simply because a party request a report does not mean it will be ordered. The court must concern itself with the applicability and necessity of the report and will consider the issues that have to be resolved, issues of delay and report cost and other factors particular to a case. However, these reports can be invaluable to the court and resolution of your case. As such, you should consider their applicability when resolving custody and access and should seek the guidance of counsel, like those at Dubas & Company in making these determinations.