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We often have inquiries by clients whom believe they have an absolute right to exercise their preference with respect to custody and access or parenting of children after separation and the amount of time a child is to spend with one parent after separation. This is an incorrect presumption.

With respect to general principles of custody and access or parenting of children after separation, the only requirement that the court needs to consider under the Divorce Act, is the the best interests of the child as determined by reference to the condition, means, needs and other circumstances of the child. The “best interests of the child” is the only test when making orders of custody and access under the Divorce Act, without any regard given to the parental preferences or “rights” of parents. There is no absolute right or goal of maximum contact with each parent. Where the contact by one parent with the child conflicts with the best interest of the child, it may be restricted but only to that extent. U

Under the Children’s Law Reform Act, another legislation that deals with custody and access or parenting time with a child after separation, the best interests of the child is also the only consideration for  for custody and access orders made by the Court.  This legislation sets out a very long but non-exhaustive (not the only factors for consideration) list of factors to be considered in determining the best interests of the child, the length of time the child has lived in a stable home environment, emotional ties with child and relatives in the home, the child’s views (if the child is old enough to express them)  and an proposals of plans of care by the child by either parent or other family members that seek custody or access. To learn more about your rights to custody or access to your children, call our law firm today to speak to one of our Child Custody Lawyers Toronto.


By Solmaz Separy, Managing Lawyer