Families Change Guide to Separation & Divorce

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Custody and Access

When your parents live together, they are both responsible for taking care of you. When your parents stop living together, this might change.

For example:

  • One parent might have sole custody. This means you have one parent who makes all the major decision for you, and usually you live with this parent. This parent is known as the parent who has primary residence.
  • Or both parents might have custody. This is called joint custody. You might live part of the time with one parent, and part of the time with the other, or live with one parent — but both parents help make decisions about things in your life.

Your parents might be able to agree on custody and access themselves. But if they can't agree, even with the help of a mediator, they can go to court and have a judge decide.

When a court is asked to decide the matter, our laws say that the court must decide on the parenting arrangement that is in the best interests of the child. It is important to note that the law recognizes that every family situation is unique and what is best for a particular child in one family may not be what is best for another child in another family. There are, however, some general factors that a court will consider when determining the best interests of a child. The court will consider things like:

  • The quality of your relationship with each parent
  • How you were cared for before your parents separated and how you have been cared for since the separation
  • The parenting abilities of each parent and their plans for your future
  • The relationships you have with other family members, extended family and friends
  • Your physical, social, emotional and financial needs

Courts may also want some information about your wishes. Generally speaking, the wishes of an older and more mature child will carry more weight than the wishes of a younger, less mature child. However, the court will never just let a child decide where they want to live. Whatever your age, the court will decide what is in your best interests.

If one parent has primary residence, the other parent usually has access, which means that you spend time with him or her. There are lots of different ways to arrange how you spend time with the parent who has access. You might spend a few hours every week with that parent, or a few days every two weeks or every other weekend. If the parent with access lives far away, access can also include keeping in touch in other ways, like phone calls, e-mails, and letters.

Access arrangements may be very specific — actually spelling out the specific hours and days for visits — or very general and flexible.

Q & A

Q:
My parents never married. Do they have to go through the same process that married parents do when they split up?
A:

Common-law parents — parents who chose to live together without getting married — don't have to get a divorce, because there is no marriage to end. But they do need to decide what will happen to their children and how they will divide their property.

Q:
Who decides who I will live with?
A:

Ideally, your parents will make the decisions together about who you will live with and how that will work. Your opinion should be taken into account.

If they can't decide themselves, they might go to a mediator for help in reaching an agreement. Or they might have to go to court and have a judge make the decisions for them.

Q:
What is the difference between separation and divorce?
A:

When two people have been living together and they decide not to live together anymore, they are separated. However, when married people separate, their marriage has not yet ended. They have to get a divorce to legally end a marriage. Common-law couples don't have to get a divorce, because there is no marriage to end.