Access rights enable minor children in the custody of one parent to have contact with the other parent.

Access rights are often referred to as “outing rights” or “visitation rights”; essentially, these terms mean the same thing as “access rights”. Visits and outings are included in access rights.

Access can be exercised many ways: phone calls, short visits (a couple of hours), outings with or without overnight stays, vacations over several days, etc. These activities can begin as soon as the parents separate, as long as the parents agree on them.

One parent may apply to have the court decide on access rights if they are unable to reach an agreement. The court will focus on the children’s interests and will set the days and times of access according to the particular situation of the parents and their children.

Generally speaking, it is usually in a child’s best interest to maintain contact with both parents. For this reason, access allows the non-custodial parent to maintain a continuous and stable relationship with the children. Note that even though they are separated, each parent keeps parental authority (see the Infosheet entitled Parental authority).

Some people other than parents can obtain access rights. The Civil Code of Québec expressly provides that parents cannot hinder the relationship of a child with his grandparents without serious grounds. If there is a disagreement, the grandfather or grandmother can ask the court to grant them specific access rights (see the Infosheet entitled Rights of grandparents with respect to grandchildren).

Lastly, anyone who has established a special emotional bond with a child can ask for access. As an example, think of a second spouse who, although not the child’s biological father, may have lived with the child for several years. It may be necessary to support their relationship to protect the child’s interests.

There is no specific age mentioned in the law at which a child’s opinions and wishes will be considered when determining custody and access.

One thing is certain though: adults will make the decision for very young children while teenagers will likely be given a say. Parents abdicate their role when they let a five-year old decide when to visit the non-custodial parent, but ordering a 16-year old to visit may cause him to rebel.

The courts have established certain standards regarding the child’s wishes, whether it concerns custody or access. A judge will consider the wishes of a child aged eight to 12 years old; these wishes will be given more weight if the child is older than 12 years.

In addition to the child’s wishes, the judge will consider other criteria such as the child’s moral, intellectual, emotional and physical needs, his health, personality, family environment and all other aspects of his situation.

Obviously, an order for access ends when a child becomes an adult. There is no reason to modify the terms of the order as long as the child is a minor and his or her parent’s situation remains the same. However, one of the parents may ask the court to modify the access if major changes happen. The concerned parent files a motion to the court describing the grounds for varying the order, and the desired modifications.

Here’s an example. Mary has custody of Sandra. Pete, Sandra’s father, is entitled to take her every second weekend and he has done that regularly since the separation. Pete has just moved closer to Mary’s house and is now able to spend more time with his daughter. He can ask the court to increase his access rights.

Obviously, children grow up. Aside from any other changes that may occur, access rights suitable for a five-year old may be inadequate once he is ten years old. This would be sufficient cause on its own to review access.

Of course. The order only applies in the absence of another agreement. Parents can adjust the terms of access to reflect the new reality that evolves naturally within the family.

Here’s an example. An order stipulates that Kelly must return her ten-year old son, Jared, by 6 p.m. Sunday evening. But Jared has started to play hockey and his games end on Sunday at 7 p.m. Kelly agrees with Jared’s father to return him by 7:30 p.m. instead.

If one parent wants to change the terms of access and the other is not in agreement, a motion has to be made to the court.

As mentioned earlier, access rights may be modified amicably or by judgment. They may be modified as soon as there is a major change in the parents’ or the children’s situation.

But you must prove to the court that exceptional circumstances exist and that it is in the child’s best interest to suspend or cancel access rights. The judge will not lightly decide to deprive a child of contact with one of his parents; the judge will order less radical solutions where possible, such as supervised access or a psychological follow-up.

Even incarcerated parents have access where the court believes that this is in the child’s best interest.

Here’s an example. Marjorie had managed to stay off drugs for the past two years. But, she recently had a relapse and is back on them again. The court can suspend her access to her four year old son if it believes that Julie's drug habit represents a danger to him.

It depends. On its own, breastfeeding cannot be used as a reason to separate a father from a child. Each situation must be evaluated independently to determine the child’s best interests. This means that, in some situations, the father’s access rights might have to follow the child’s feeding schedule.

The courts will generally look at the following criteria, when a child is being breastfed:

• The attitude of each parent towards breastfeeding and weaning;
  
• Who made the decision to continue breastfeeding: both parents or just the mother?
  
• Whether or not weaning poses risks or creates real inconveniences for the child;
  
• The mother’s attempts to make access rights easier for the father;
  
• The age of the child and his relationship with each of his parents.

The court will not force a mother to pump her breast milk in order to allow the father to have more time with the child. The court will simply decide when the father can spend time with the child. The mother will have to adjust her feeding schedule in accordance to these access rights.

In many situations, the father’s access rights will be progressive, which means that they will increase with time.

Yes. The Divorce Act considers that there is a change in a child’s situation when an ex-spouse is in critical condition, such as the last stages of a terminal illness. The terminally sick parent may ask the court for access rights to his child, which will be given if they are in the child’s best interests.

The Divorce Act does not apply if the parents were not married. However, the request for access rights or for a change in access rights may still succeed if it is in the best interests of the child and if the judge considers that the parent’s terminal illness is a major change in the child’s situation.

A third party can supervise access if necessary to protect the child if the non-custodial parent exhibits an improper attitude. This is often the case when there has been no contact between the parent and child for a long period of time, and it is thought best to supervise the gradual renewal of parent-child relations. Supervision is usually preferable to cancelling or suspending access.

Supervision can be awarded to a trustworthy relative of the child (grandfather, grandmother, aunt, uncle) or a qualified professional. In many regions of Quebec, there are houses where access can be exercised in a safe and welcoming atmosphere under the supervision of qualified personnel. The court can request that a report be submitted after a certain period if it orders supervision in one of these houses. This ensures that both the court and the parents are informed as to how the visits are unfolding and enables them to terminate the measure if necessary.

Here’s an example. Darryl has a violent temper and on several occasions he has hit his son to the point where his son is now starting to fear his father. The mother asked for supervised access and the court ordered that it be carried out three hours per week under constant supervision. Darryl must also undergo therapy to learn how to control himself and to properly care for his son.

A move that was not planned at the time custody was awarded to one or the other of the parents constitutes a major change. The non-custodial parent could use this as a reason for obtaining custody. It would therefore be wise to first make sure that your ex-spouse does not oppose the child’s departure or that you have obtained a court order authorizing the move.

The court will be guided by the child’s best interest. It is normally assumed that it is in the child’s interest to remain with the custodial parent. But the court could decide, after considering all the circumstances including the child’s wishes, that it is better if the child remains in the country with the other parent. The court will also consider the reasons for the move, which should not be intended to cut the ties between the child and the other parent.

Access must generally be adjusted when the court authorizes a move, so that it is carried out less frequently but for longer periods of time. For example, the child will spend almost every long school holiday with the non-custodial parent as well as several weeks during the summer. Either one or both of the parents will pay the travel costs, depending on their financial situations.

The law does not provide for any particular punishment where a parent does not regularly exercise access. However, the court could consider this fact when determining child support and the terms of custody.

Access may be suspended or cancelled if it is not exercised. In extreme cases, the court may decide that it is less harmful for the child to have no contact with the parent rather than irregular contact because it is important to protect the child’s psychological well-being. In essence, this can be viewed as a type of punishment imposed on the parent.

You must be tolerant. You don’t have to accept everything, but you should consider why he is late and the consequences of his tardiness.

For example, Nicole is sometimes ten minutes late when picking up her children at John’s because of her work schedule. Ten minutes isn’t a big deal. However, it would be better if she warned her ex-spouse where possible if she was going to be any later.

The situation is different if the ex-spouse is always late or is several hours late. Try and tell your tardy ex-spouse that this situation displeases you and disappoints the children. If this doesn’t help, you can ask the court to modify the schedule or any other condition of access.

First of all, ask the court to clearly define your access rights. If the situation persists once the judgment has been rendered, you can ask that your ex-spouse be found in contempt of court because he is not respecting a court order.

You can seek custody if this doesn’t work, which is sometimes the only way to end a situation that is so harmful for the children.

When the courts rule on child custody, they will consider in particular the attitudes of both parents when it comes to encouraging the other parent’s right to access. If the judge is convinced that one of the parents will hinder the other parent’s access out of vengeance or for any other reason, there is a good chance the judge will award custody to the other parent.

In law, there is no connection between child support and access rights. Your child should not be deprived of a parent based on this reason alone. If your ex-spouse must pay support and does not, you have other means available to collect support.