The Child’s Best Interest

By Sanjay R. Patel – Barrister, Solicitor and Notary Public
When parents separate or divorce, a main area of concern is often the future of their children.

“Custody” and “Access” are two terms that are key but are often misinterpreted in the case of a separation involving children.

Custody relates to important decisions in regarding to how to care for and raise the child. This includes where the child attends school, the religion they practice, where they will live, their legal name, health care decisions and determining their extra-curricular activities.

Access, which is entirely distinct from Custody, deals with the amount of time each parent actually gets to see the child and the arrangements related to the same.

By virtue of the Children’s Law Reform Act and the Family Act, determinations of Custody and Access must be made while considering what is in the best interest of the child?

Clients often make the mistake of assuming that because they are a parent, they are entitled to have shared custody and access to the child half of the time. A court will not accept scenarios or endorse orders where there is a clear detriment to the child. For example an arrangement where a child who has to wake up at 4:30 am each day so that one parent can drop him at day care for 6:00 am and rush to work on time – will not be acceptable to the court; particularly if the child does not have to face these hardships when living with the other parent, shared custody and equal access may not be guaranteed. In these situations, particularly where hardships imposed on the child, what is actually best for the child and the child’s life will be the key directive in settling child related issues either during litigation or outside the courtroom.

It is important to seek the advice of a licensed legal practitioner as early as possible in the separation process to determine your rights and to get an idea of how court will determine Family Law issues such as child Custody and Access.

Sanjay R. Patel is an associate at OB Law Chambers and a Barrister, Solicitor and Notary Public practicing in the areas of Family Law, Immigration Law and Criminal Law. The foregoing is intended for information purposes only and you should consult a lawyer if you need legal representation or a formal legal opinion.