C. Definitions of “Custody” and “Access”

Author:Julien D. Payne - Marilyn A. Payne

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Section 2(1) of the Divorce Act provides that "custody" includes care, upbringing, and any other incident of custody. The reference to "any other incident of custody" in the statutory definition of "custody" facilitates a court-ordered division of the various incidents of custody between the respective claimants, where an order for custody or any variation thereof is made pursuant to section 16 or section 17 of the Divorce Act.7 Section 2(1) of the Divorce Act provides no definition of "access" in the English language, but the French version provides as follows: "‘Accès’ comporte le droit de visite." Section 16(5) of the Divorce Act qualifies this definition of "accès" by entitling a spouse who is granted access privileges to make inquiries and receive information concerning the health, education, or welfare of the child. This right exists in the absence of a court order to the contrary. It does not extend to any person other than a spouse who has been granted access privileges. Section 16(5) entitles a spouse who is granted access privileges to direct relevant inquiries to the custodial parent or to a third party, such as the child’s doctor or school principal. This right may not extend to being entitled to be involved in school activities.8

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The onus is on the non-custodial spouse to seek the relevant information9

unless the court specifically directs that custodial parent to provide the information.10Section 16(5) does not expressly require the custodial parent to consult with the spouse who has access privileges before decisions are taken that affect the child’s health, education, and welfare.11If, for example, the parents cannot agree on where their child should go to school, the custodial parent has the ultimate decision-making power,12subject to a court’s right to override that decision.13The term "custody" is imprecise and has in the past been used in both a wide and a narrow sense. In Hewar v Bryant,14Sachs LJ, of the Court of Appeal in England, observed that in its wide sense, custody is virtually equivalent to guardianship, whereas in its narrow sense, custody refers to the power to exercise physical control over the child. In Canadian divorce proceedings, case-law tends to support the conclusion that, in the absence of directions to the contrary, an order granting sole custody to one parent signifies that the custodial parent shall exercise all the powers of the legal guardian of the child.15

The non-custodial parent with access privileges is thus deprived of the rights and responsibilities that previously vested in that parent as a joint custodian of the child.16Although a parent who has been granted access privileges may have some limited powers to make decisions where an emergency necessitates action and the custodial parent is unavailable, these limited powers fall short of a fundamental right to equally participate in decisions...

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