Access rights (also called “visitation rights”) are the rights that allow children to have contact with an adult who doesn’t have custody of them. A parent has access rights to children when she has them with her less than 40% of the time.

For example, Nathan has the children with him 70% of the time and Deborah has them 30% of the time. Nathan has custody of the children and Deborah has access rights.

Access rights can be exercised in various ways: phone calls, visits that last a few hours, outings with or without sleepovers, vacations, etc.

Be careful! Even if parent doesn’t see her children often, she still has the right to be consulted for all important decisions regarding them.

As soon as they break-up, parents can agree about their children’s custody and access rights. They can submit their agreement to a judge so that it becomes part of his judgment.

If they cannot agree, one of the parents can ask a judge to decide for them.

When deciding about the custody of children and access rights, a judge is mainly concerned with the children’s interests. In his judgment, he will establish access rights, specifying days, times and any other modalities, depending on the specific situation of the children and their parents.

1) One of their parents: if one parent has custody, the other parent can usually obtain access rights because it is generally assumed that it is in children’s best interests to have a relationship with both parents. Access rights allow the parent who does not have custody to maintain a continuous and stable relationship with her children.

2) Grandparents: our Infosheet The Rights of Grandchildren to Have a Relationship with Their Grandparents is dedicated to this issue. Please consult it.

3) Other people: anyone who has developed a strong and significant relationship with the children can ask for access rights. For example, a second husband who is not a child’s biological father but who lived with him for several years and acted as his father figure.

The law does not specify the age at which a child’s opinion and wishes about custody and access rights should be considered.

Clearly, adults will make decisions regarding younger children. Again, clearly, adolescents will have their say. Letting a 5 year old decide when she will see the parent who does not have custody would be abdicating one’s role as a parent. Forcing a 16 year old to come to your house, would be risking a rebellion!

Judges have established certain guidelines about the wishes expressed by children concerning custody and access rights. A judge will consider the wishes of a child between 8 and 11 years old; the opinion of a child who is 12 or older will be strongly considered and sometimes largely conclusive.

Remember that the judge will not only consider the child’s wishes, but other factors, such as the child’s moral, intellectual, emotional and physical needs, his health, character, family environment and other aspects of his situation.

Such a judgment ends when the child turns 18. As long as he is a minor and his situation and that of his parents remains the same, there is no reason to change the judgment. However, if new and important facts arise, one of the parents can ask a judge to change access rights.

For example, Nathan changes jobs and comes home late at night. His new work schedule doesn’t allow him to help Benjamin with his studies. Benjamin begins failing classes. He goes out and parties with friends instead of studying. Deborah is worried about the situation. Her current access rights are every other weekend. She would like to change them so that she can see Bejamin during the week, supervise him and help with his studies.

Children obviously grow up. Regardless of other changes, access rights that worked well when a child was 2 years old may be inadequate when she turns 10. When access rights no longer have anything to do with a child’s situation, one of the parents may ask a judge to review them.

Certainly. The judgment only applies if there is no other agreement between the parents. As the family situation evolves, you can agree with your ex-partner to change or adjust access rights.

For example, the judgment provides that Sylvie must bring Antoine back on Sundays at 6.00 p.m. Antoine wants to go to his cousin’s party that ends at 8.00 p.m. Sylvie and Antoine’s father can agree that she will bring him back at 8.30 p.m.

However, it is important to know that agreements between parents that considerably change the access rights specified in the judgment over a long period of time may give one parent the right to ask for the judgment to be changed.

For example, according to the judgment, Antoine spends 25% of his time with his mother, Sylvie. His father has a new girlfriend and asks Sylvie if she would like to take Antoine more often. Sylvie does the math: for the last six months, Antoine has been living with her 50% of the time. Sylvie wants to change the judgment. She wants shared custody of Antoine. She also wants the child support that she pays for Antoine to be recalculated because support is directly related to the amount of time that Antoine spends with each parent.

As we have seen, access rights may be changed by an agreement between the parents or by judgment, as soon as there’s an important change in the children or parents’ situation.

For access rights to be suspended (stopped for a period of time) or cancelled, one must go in front of a judge and show him that exceptional circumstances make it necessary to do so in the children’s interests. Even parents who are in jail obtain access rights when a judge decides that this is in the children’s interests.

A judge will not take the decision to deny a child contact with a parent lightly; if possible, he will prefer a less radical solution, like supervised access rights.

Let’s look at an example: Marjolaine hasn’t taken drugs for 2 years. Unfortunately, she just had a relapse. If a judge is convinced that Marjolaine is a danger to her 4 year old son because of her drug use, he may impose supervised access rights.

It depends. One must evaluate the child’s best interests on a case by case basis. In and of itself, breastfeeding is not a reason to separate a child from her father. However, there are situations in which a father’s access rights will be established in a way that respects a child’s breastfeeding schedule.

If the parents don’t agree on a father’s access rights to a breastfeeding child, they can ask a judge to decide for them. The judge will usually consider the following factors:

• Both parents’ opinions about breastfeeding and weaning.
  
• Whether the decision to continue breastfeeding the child was taken by the mother, on her own, or by both parents.
  
• Whether weaning will create real risks and inconveniences for the child.
  
• The mother’s efforts to facilitate the father’s access rights.
  
• The child’s age and relationship with both parents.

A judge will not force a mother to pump milk to allow a child to spend more time with her father. However, a judge may decide the times at which a father may see his child and the mother will have to adapt her breastfeeding schedule accordingly.

In many cases, a father’s access rights will be progressive, that is, they will increase over time.

Yes, if it’s in the children’s best interests.

Divorced parents

The Divorce Act specifically states that a parent’s critical condition may allow a judge to review access rights. The judge will decide whether there should be a change by considering the best interests of the children. For example, Rejeanne is in the terminal stage of cancer. Her doctor thinks she has 3 weeks left to live. Rejeanne may ask a judge to change her access rights so that she can see her daughter, Cynthia, as much as possible in her last 3 weeks.

Separated parents (unmarried ex-partners, married spouses that are separated from bed and board or spouses that have ended their civil union)

The sick parent can ask a judge to change her access rights. Because the law doesn’t automatically provide for it, it will be up to her to demonstrate to the judge that her illness changes her situation or that of her children in an important way and that increasing her access rights is in the children’s best interests.

A judge will establish supervised visits when, for example:

• The children need to be protected from the behaviour, actions or attitude of the parent who wants to have access (violence, alcoholism, drug use, etc.).
  
  
• The children haven’t had contact for a long time with the parent who wants access and it is a good idea to supervise the gradual reestablishment of their relationship.

Judges generally prefer supervised access rights over completely denying children from seeing one of their parents.

Who can supervise visits?

• A trustworthy person who is related to the children (grand-father, grand-mother, uncle, aunt, etc.)
  
  
• A trustworthy person who is not related to the children (a friend of the parents, a babysitter, etc.)
  
  
• A qualified service-provider. In several regions of Quebec, there are places where access rights are exercised in a secure and welcoming atmosphere, under the supervision of qualified service-providers.

Let’s look at an example: Jean-Claude has a nasty temper. He has hit his son several times and his son fears him. Upon his mother’s request, the judge orders that Jean-Claude’s access rights be exercised under the constant supervision of a service-provider once a week for 3 hours. Jean-Claude agrees to see a therapist to learn to control his anger and to take better care of his son.

A move that was not anticipated when custody was being given to one of the parents is an important change that allows the other parent to ask for custody. It is therefore wise to plan ahead of time and to make sure that the other parent is not against the children’s move abroad or to obtain a judgment giving you permission to move abroad with the children.

A custodial parent who asks a judge’s permission to move with the children will generally get it, unless he is in one of the following situations:

• The move is an impulsive decision, taken without considering what’s best for your children.
  
  
• The purpose of the move is to rid yourself of your ex-partner.
  
  
• The children are rooted in their current lives and are not more attached to you than to the other parent.
  
  
• The children are against the move and the other parent is able to take care of them.

It should always be remembered that a judge will always try to do what’s in the children’s best interests.

When the move is authorized, the judge will usually reorganize access rights so that they will be less frequent and longer. For example: the children will spend almost all long school holidays with the parent who does not have custody, as well as several weeks during the summer holidays. The costs of travel will be assumed by one parent or the other, or they will be shared, depending on their financial situation.

The law does not provide specific punishment for a parent who does not exercise his access rights regularly. However, you can ask a judge to:

• increase the child support that your ex-partner pays for the children. If he sees them much less, it is possible that he will have to pay you more.
  
  
• decrease or, in extreme situations, cancel your ex-partner’s access rights. In certain cases, to protect your children’s psychological well-being, a judge will decide that it is better for them to have no contact with the other parent than for them to have irregular contact.

Do not hesitate to obtain advice from a lawyer if you are in this situation.

Tolerance is a must. You do not have to accept everything that your ex-partner throws at you, but you need to consider her reasons for being late and measure the consequences of her lateness.

For example, Nicole is sometimes 10 minutes late when she picks up her children from John’s place because of her work schedule. This isn’t that dramatic. However, if she is running late, she should ideally try to warn John in advance.

The situation is different when you can no longer keep track of the number of times your ex-partner has been late or the lateness is measured in hours, not minutes. You can try to speak with your ex-partner about the situation: being late does not only affect you, it also affects the children. You can also send a Demand Letter to encourage her to correct the situation. As a last resort, you can ask a judge to change her access rights to the children.

If there is no judgment

You can ask for an urgent decision that will clearly establish your access rights. To understand how to obtain an urgent decision, consult our Infosheet Obtaining an Urgent and Temporary Ruling Before the Divorce Trial or Breaking-up When You Are Not Married: the Court Process, depending on your situation.

If there is a judgment

You can:

• Send a demand letter to your ex-partner in which you explain in what ways she has not respected the judgment and assert your right to see your children, as per the judgment.
  
• Ask a judge to recognize that your ex-partner doesn’t respect the judgment and find her to be in contempt of court. If she is found guilty, the judge can punish her.
  
• In extreme cases, you can ask that custody be changed.

No. You do not have the right to deny your children from having contact with their other parent for this reason. You can ask a judge to order her to pay child support and to fix the amount that she must pay.