What Visitation Rights Do I Have?
Section 20 of the Children’s Law Reform Act sets out the basic rule concerning a parent’s right to have access to his/her child:
“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. Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement.”
Therefore, an “Access Parent” does not have any right to make decisions for a child with respect to any issues regarding the Child’s health, education and welfare. The “Custodial Parent” will make those decisions and the “Access Parent” has the right to obtain information regarding the Child and other other family law matters.
Determining Child Visitation
It is important to consider the age of the child when evaluating how and when a non-custodial parent should have visitation with a child. It is generally accepted that a younger child needs regular and frequent short visits with a non-custodial parent. A child less than 5 years old has very different needs than an older child. It is particularly important for a younger child to have frequent contact with a non-custodial parent in order to bond with this parent. Although there is no magic formula for a times and duration of access, as a child grows, the schedule should adapt to their needs.
A court will consider the best interests of the Child when considering how and when to grant a parent access to a Child. In all cases the court will balance the benefits to the child of having contact with the parent with the risks that the parent poses to the Child. A parent’s conduct is only relevant in so far as it relates to that person’s ability to care for the Child. Therefore, if the person has alcohol or drug problems, which results in their inability to properly care for the child or puts the child’s welfare at risk, it is likely that a court may deny the parent access to the Child or only on a supervised basis.
Supervised access may occur at a supervised access facility. There are various government agencies that provide numerous locations that are safe and secure (monitored by various social workers) where an access parent can visit with his/her Child and the custodial parent can be assured that the Child will be safe. This may not always be satisfactory to an access parent, who often feels that they are unable to develop a positive relationship with their child in a monitored environment. They often feel that it sends the wrong message to the Child. However, if the access parent demonstrates that he/she is a capable, loving parent, who interacts with the Child in a positive way, it is likely that a court will eventually modify custody and visitation orders if there is no evidence that the parent poses any risk of harm to the Child. A divorce lawyer can also help in this regard.
If the access parent is unwilling to have access occur at a supervised access centre, it is possible to have access supervised by a paid “supervisor” (certain businesses provide this service) at a mutually agreed location. In the alternative, the parties could agree or the court could order that access is to be supervised by a third party who the court believes would be appropriate to ensure that the child is not exposed to any harm.
Modifying Custody and Visitation Orders
If the parties are unable to agree as to times and dates for access, a court may specify when a parent has visitation with a child. It is important to recognize that modifying custody or child visitation orders may take place at any time; custody and visitation orders are not set in stone and may always be varied by the court if it is in the best interests of the Child.
It is important for a custodial parent to encourage a child’s relationship with the non-custodial parent. A parent that interferes with a child’s relationship with the other parent will likely be accused of “parental alienation.” A recent case penalized a custodial parent for alienating the children from the non-custodial parent, by granting the “access parent” custody of the children and only allowing the “custody parent” restricted access to the children.
A non-custodial parent must recognize that once a “status quo” has been agreed to by the parties with respect to the times and dates when a parent is visiting with a Child, a court may be reluctant to interfere with the “status quo” because one parent changes his/her mind. Therefore, it is important to try to have a satisfactory arrangement with respect to the Child as it may affect future access.