Child Access and Parenting Time

Access for Married and Divorced Parents

In both Ontario and BC, the Divorce Act gives judges the power to grant married spouses (or spouses who were previously married to each other) “access” to their children. “Access” is not specifically defined in the Divorce Act, but it generally means just what it sounds like: if you don’t have “custody” but you do have “access” then you get to see your child some of the time, but you don’t get to make major decisions for the child.

Section 16(5) of the Divorce Act also says that:

(5) 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.”

So a parent with access time, is a parent who is not the custodial parent, but a parent who still has some amount of time with, and right to get information about, his or her child.

In Ontario, whether parents have been married or not, s. 20(5) of the Children’s Law Reform Act has a similar section that is a little more explicit:

(5) 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.”

This makes it clear that the “access parent” has not only the right to information, but also the right to spend time with his or her child.

Things work similarly in BC, but with the new BC Family Law Act brought into force in 2013, the terminology changed. In BC, the Act talks about “parenting time” instead of “access.”

Under the BC FLA, only a “guardian” can have parenting time with a child. (Guardianship in BC under the FLA means something similar to what “custody” means in Ontario under the CLRA.)

This may seem weird at first to people accustomed to the “old way” of doing it–how can a person be a guardian (i.e. have “custody”), but then need parenting time (i.e. “access”)?

The explanation is that, in BC, the legislature tried to rework how parents think about children. They do not want children to be seen as property (or prizes) to be in the custody of one parent or the other. The default assumption is that both parents are guardians, and then, from there, the court decides (if the parents can’t decide on their own) which parent has what parenting time.

This new way of thinking about parenting time reflects the reality of many modern families. When spouses separate in Canada, it is no longer an assumption that one parent will have the children more or less full time, and the other will see them only a few days a week (or less). As a result, the distinction between “custody” and “access” can be very blurry, especially in a situation where parents share time with the children roughly 50/50.

The language used in the CLRA in Ontario has not yet caught up with this modern reality, but regardless of the terminology, courts in both provinces will make decisions about how much time a “non custodial” parent spends with a child based solely on the best interests of that child.