The legal term custody refers to all the rights and duties related to the care of a child. This includes the right to make all important decisions about the child's care and upbringing (legal custody), and the right to the actual everyday physical care and control of the child (physical custody). Under The Family Maintenance Act, both parents of a child have equal rights to the custody and control of their child (joint legal custody), if they have lived together after the child's birth and no court order has set out a different arrangement. It does not matter if they are married or unmarried. A written agreement cannot change this custody right. However, if the parents never lived together after the child's birth, the parent with whom the child lives is deemed to have sole custody and control.
Access usually means the right to have visits with a child, but it can also mean other kinds of contact, such as regular telephone calls, the right to send e-mail messages to the child or the right to send or receive cards or gifts.
Under The Family Maintenance Act, only a child's parents have the right to apply for a court order of custody or access. Under the Divorce Act, either spouse or any other person may apply for an order of custody or access, but if the applicant is not one of the spouses, he or she must first get leave (permission) from the court.
Grandparents, other family members and others with a special connection to a child who want to assume responsibility for a child's care may apply for an order of guardianship under The Child and Family Services Act. They may also apply for access to a child under that act. For further information, see the section in this chapter on "Access by Grandparents and Others."
Guardianship is the legal term that is used when someone other than a parent assumes formal and legal responsibility for the care and control of a child. Sometimes, when parents are unable or unwilling to properly care for their children, a child and family services agency steps in and seeks an order of guardianship. This is discussed in Chapter 12 - Protection of Children. When someone other than an agency wants to apply, this is sometimes referred to as an application for private guardianship, which is discussed later in this chapter.
Court orders or agreements may use the terms custody and access to describe the parenting arrangements for children. However, they may not use these terms and instead the order or agreement may just set out the times that the child will spend with each parent or may describe one of the parents as the primary caregiver. Remember, if a court order does not state who has custody, then according to The Family Maintenance Act, so long as they lived together after the child's birth, the parents have joint legal custody.
When parents separate and can't agree on parenting arrangements, either parent can ask the court to make the decision for them. The court must make custody decisions based on what arrangements are in the best interests of the child. This involves an evaluation of what will promote the child's physical, emotional, intellectual and moral well-being. The court encourages parents to resolve the dispute through mediation. The court has the power to refer parents to a mediator at Family Conciliation, a branch of Manitoba Family Services and Housing that works closely with the court. If mediation is inappropriate or mediation is unsuccessful, the court will make a decision based on the best interests of the child.
Before the court will make a decision on custody or access, the parents must ordinarily complete the For the Sake of the Children information program. See page 38 for more information.
The court will take into account a number of factors, such as:
- care arrangements before the separation (Ex: Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extra-curricular activities? Who dealt with the child's school and teachers?)
- the parent-child relationship and bonding
- parenting ability
- any family violence or other conduct that relates to parenting ability
- the parents' mental, physical and emotional health
- the parents' and the child's schedules
- support systems (Ex: assistance and involvement from grandparents and other close relatives)
- sibling issues (Ex: brothers and sisters should generally remain together, but under some circumstances, it may be necessary to consider separating them)
- the child's special needs (Ex: the child has a serious medical condition and one parent is better able to handle the care required)
The court may also consider the child's wishes. There is no magic age for when a child has the right to decide where he or she is going to live. The court gives more weight to the child's wishes as the child matures. An older teenager's wishes will often be decisive.
Children shouldn't be put in the position of having to choose one parent over the other because it may be psychologically damaging. Children should never be placed in the middle of their parents' dispute. As a general rule, parents should never involve their children directly in the court proceeding by getting them to provide or sign affidavits or testify. This is very destructive and almost always unnecessary. If the court needs to know the children's wishes, a parenting expert can be called on to interview the children and report to the court. This report would be part of a complete assessment of parenting arrangements for the family. See the section on assessments later in this chapter.
The judge will also look at each parent's willingness to support the other parent's involvement with the child. For example, if one parent talks badly about the other parent to the children or in the children's presence and prevents the other parent from seeing the children without good reason, the judge may decide that parent should not have custody
The law encourages the continuation of a healthy relationship between both parents and their children after separation. Unless there is a risk to the children, generally it is best for children to have contact with both parents.
A court order of custody or sole custody to a parent means that parent has both legal and physical custody of the child. He or she makes the important decisions about the child's education, extracurricular activities, health and religion, and the child lives most or all of the time with that parent.
When the court makes a sole custody order, it will usually give the other parent access, the right to have contact with the child. What an order of access or reasonable access means depends on the arrangements the parents make between themselves. For example, it may mean that the child lives with the other parent two or three days a week, or that the child sees the other parent once a week.
Sometimes, especially when the parents have difficulty co-operating with one another, the court may order specified access. This kind of order will lay out exactly when and under what conditions the other parent can have contact with the child. Where there is tension and conflict between the parents or safety concerns, the court may order that a third party be involved to facilitate the access (Ex: by helping with the pick-ups and drop-offs). If there are real concerns about the behaviour of a parent during access, the court can impose conditions. For example, if a parent drinks and drives with their children as passengers, those children are put at risk. If a parent has reason to believe the other parent is endangering the children this way, he or she can ask the court to prohibit that parent from consuming alcohol before or during any period of access, or prohibit that parent from driving with the children. Where the court is concerned about the child's safety in the care of that parent, the court may order that another person supervise the access. Specialized services are available in Winnipeg and Brandon to assist with the pick-up and drop-off of children for access or access supervision. For more information, contact:
Winnipeg Children's Access Agency
Brandon Access Exchange Service
Phone: 729-8115 (Collect)
Toll free to either Winnipeg or Brandon
Parents who do not have custody (non-custodial parents) have rights to information about the child. The federal Divorce Act gives a parent with an access order the right to ask for and be given information as to the health, education and welfare of a child, unless a court orders otherwise.
The Family Maintenance Act says the noncustodial parent has the same right as the custodial parent to receive school, medical, psychological, dental and other reports about the child, unless a court orders otherwise. The provincial legislation makes it clear that this is a right to information only. It is not a right to be consulted about or participate in decisionmaking about the child.
The court often orders that the parents have joint custody, with one parent having primary physical care and control, and the other parent having physical care and control as the parties may agree or at specified times. This kind of order means that both parents have legal custody of the child - joint decision-making power- but one parent looks after the child most of the time and makes the everyday decisions about the child's care. Remember, some orders don't use the word custody at all but specify the times the child will spend with each parent. With such orders, both parents would continue to have joint custody according to The Family Maintenance Act.
Sometimes the court will state in the order that the parties must consult with each other on all major decisions respecting the child, but that one parent has the right to make the final decision if they can't agree. The court is more likely to make a joint custody order where the parents agree on it and appear to be able to co-operate with one another for the benefit of the child.
The court can order that the parents not only have joint legal custody but also joint physical custody - that is, the child will live with each parent more or less equally. The court is very unlikely to make this kind of order where one party is opposed to it. Shared custody requires parents to be able to effectively communicate and co-operate with one another.
Where parents can't agree on parenting arrangements, the court may order that an independent expert evaluator investigate and provide an assessment report to the court. The person who does the assessment is a family relations specialist employed or retained by Family Conciliation, unless the parents agree to a different person or agency. The parents do not pay for the assessment if it is prepared by Family Conciliation. Parents cannot be forced to participate in the assessment, but a judge may look negatively on a parent's refusal to co-operate in an assessment.
The evaluator interviews and observes the parents and the children and may also speak to extended members (Ex: grandparents) and others, such as the child's teachers. The evaluator writes a report with recommendations and gives it to the court and the parents. If the parents still don't agree on the parenting arrangements and there is a trial, each of them has the right to ask that the evaluator come to the trial and to ask the evaluator questions (cross-examine) about the report.
A parent does not have the right to have an assessment prepared by Family Conciliation. The court will order it only if the court thinks it is necessary to resolve the dispute. Parents can hire a private practitioner at their own expense, but a private assessment should have the agreement, co-operation and participation of both parents.
When parents have joint custody (under a court order or not) neither parent has the right to move the child without the other parent's consent, unless a court order provides otherwise. Where the court has ordered specified access, the custodial parent should not move the child without the non-custodial parent's consent. In some cases, moving a child without the consent of a parent who has custody rights or specified access rights is a criminal offence and the offending parent may be charged with parental child abduction or breaching a court order. It is very important to consult a lawyer in these situations well before the move is to take place, as a court order may be necessary. See Chapter 11 on enforcement for more information.
As a general rule, when the child lives in Manitoba, a parent who wants an order of custody or access must apply to a Manitoba court. This is the case even if that parent lives outside Manitoba. In an application under the Divorce Act, a parent may make a claim for custody or access in a court in a province where one of the parents normally lives, even if the child does not live there. However, the court will usually transfer the proceeding to the province where the child normally lives.
Where there is a court order of custody or access and an important change occurs affecting a child, either parent may ask the court to change (vary) the order. Some examples would include when a teenage child wants to spend more time with a parent than the court order allows, a custodial parent wants to change the access order because the other parent is not caring for the child adequately during visits or a non-custodial parent wants access to be specified because the parents cannot agree on how often visits should take place. If the parents can't agree on changing the order, they may choose to attend mediation before asking the court to decide the issue.
Many separating parents prefer to resolve their disputes over parenting arrangements outside of court by reaching parenting agreements. The intent is to keep the stress and disruption of separation at a minimum for the children's sake.
This approach provides parents with the freedom to make parenting arrangements that best suit their family. For example, they may not want to use the traditional legal terms of custody and access that some people feel are not appropriate to describe a parent-child relationship. Traditional legal language is not required and they may want to have an agreement which recognizes joint responsibility and commitment to care for the child.
Parenting agreements usually cover such matters as where the child is to live, how the parents will share the child's time and how decisions about the child will be made.
Most agreements will also contain a provision that the parties can amend the agreement if an important change occurs, and that if they can't agree on the amendment to the agreement, either can apply to the court for an order. Some agreements state that as an alternative, the parties will go to mediation or arbitration to resolve the issue.
Lawyers can help parents negotiate an agreement. A mediator, whether a lawyer, a social worker, or other professional, can help parents make their own agreement.
Family Conciliation provides mediation on parenting issues at no cost. Before mediation begins, the parents are interviewed to determine whether mediation is appropriate in their case. Mediation is not considered appropriate, for example, where there has been family violence.
The parents must attend a supportive information program, For the Sake of the Children. Once parents have attended the program and have decided to proceed with mediation, Family Conciliation will assign a mediator. The mediator will meet with the parents separately and together, and sometimes with the children. The mediation is confidential and nothing said in the mediation can later be used in a court custody proceeding.
Family Conciliation also offers a special kind of mediation service, called Comprehensive Co-Mediation, through its Winnipeg office. This allows parents to mediate all issues, including child support, spousal support and division of family property.
If mediation is successful and the parents agree on their arrangements, the mediator puts the agreed parenting arrangements in writing and advises the parents to review it with their lawyers. The lawyers will then put the mediated parenting agreement into a formal agreement, usually as part of a complete separation agreement that settles all issues between the parents, or in a court order, or both.
There are also mediators in private practice. See Chapter 2 for more information about private mediation.
First Choice is an alternative dispute-resolution program offered by Family Conciliation to help parents and others resolve custody and access disputes. It offers early intervention by a professional two-person team who interview the parties and advise on the likely outcome of a family assessment report, as well as helping them settle outstanding issues. The parties’ lawyers are encouraged to participate. To access the program, the court must make a referral and the agreement of both parties is required. For more information, contact Family Conciliation at:
2nd Floor, 379 Broadway
Winnipeg MB R3C 0T9
Phone: 204-945-7236 in Winnipeg
Toll free: 1-800-282-8069 (ext. 7236)
The purpose of the Manitoba government's For the Sake of the Children parent information program is to help parents:
understand what they are going through both legally and emotionally
cope with and adjust to separation, so they in turn, can help their children adjust
Professionals who specialize in family conflict resolution present the program. There are two seminars, each about three hours long.
The programs focus on how both parents and children experience separation, the costs of conflict, the benefits of keeping conflict low, children's needs at different ages, parenting plans, legal and economic issues, alternatives to court and reorganizing after separation. Videos are used to help discussion on communication with children and the other parent, and new partner issues.
Two different programs are offered in the second seminar. One is designed for parents experiencing lower levels of conflict. This program emphasizes a more direct contact approach to parent communication. The other program is designed for parents experiencing higher conflict and focuses on safe, low- to no-contact approaches to parenting. All participants attend the first seminar. Participants then enroll in either the lower conflict or higher conflict program. A CD-ROM of the first seminar and legal information video can be borrowed from Family Conciliation offices, libraries, court offices and Legal Aid offices in rural and northern Manitoba.
For the Sake of the Children is open to all parents, other interested family members and anyone else who wishes to attend. There is no cost to participants. As of May 15, 2007, new court rules make program attendance mandatory for Manitobans who are requesting or responding to requests for orders of:
There are some exceptions to mandatory attendance, including:
The court can also order that a person’s attendance be excused or postponed in cases of urgency or hardship or where the court feels it is appropriate to do so.
Those attending the program will receive an attendance certificate, which should be filed in court before the hearing takes place, unless the court orders otherwise.
For more information or to register for a session near you, call between 8:30 a.m. to 4:30 p.m.:
Toll free: 1-800-282-8069 (Ext. 4257)
Toll free: 1-800-230-1885
Toll free: 1-866-355-3494
Flin Flon 687-1700
Toll free: 1-866-443-2291
The Pas 627-8311
Toll free: 1-866-443-2292
Toll free: 1-866-677-6713
Swan River 734-3491
Toll free: 1-888-269-6498
In Winnipeg, For the Sake of the Children runs several sessions per week days and evenings, as well as occasional Saturday mornings. Parents should be able to attend the first seminar within a week or so of registering. Schedules vary outside Winnipeg.
More information about the services offered by Family Conciliation is available on their website at: www.manitoba.ca/fs/childfam/family_conciliation.html.
Parents are generally responsible for caring for and making decisions about their children. However, if the parents are unable to care for their children or if there is disagreement about access by grandparents or others, the law provides some options.
Sometimes, when parents can't take care of their children, grandparents or other family members or friends step in rather than involving a child and family services agency. When someone other than a parent wants to assume legal responsibility to care for a child, that person can apply to the court for an order of private guardianship. Part VII of The Child and Family Services Act deals with private guardianship. The court can appoint any adult as a guardian of the child and may remove a guardian so appointed with or without appointing another. The court can appoint a guardian on a temporary ( interim) basis until the issues are finally settled or on a final basis. Before any order is granted, notice must be given to:
- the parents of the child;
- the guardian of the child (if any);
- the child, if he or she is 12 years of age or older;
- any child and family services agency that has care of the child;
- the agency serving the appropriate First Nation if the child is or could be registered as a status Indian.
As with many other kinds of decisions involving children, a judge considering an application for private guardianship must consider whether the order would be in the best interests of the child. Once appointed, the guardian has the care and control of the child and is responsible for the child’s maintenance, education and well-being.
There are a variety of services available to help parents, grandparents and others find solutions to child access issues. Where agreement cannot be reached about the amount or type of access, or even whether access should take place at all, legislation exists that allows people to ask a judge to make an access order.
Family Conciliation's free, child-focussed information program, For the Sake of the Children is available to grandparents and other interested people as well as parents. See page 38 for more information about this program. Family Conciliation also offers free mediation services to families who have completed the
For the Sake of the Children information program. Family Conciliation staff will work with families to try to resolve access issues without going to court. If an agreement can be reached, it can be (but does not have to be) included in a court order.
Family Conciliation also offers the services of a grandparent advisor to help families find the best solutions and services when grandchild access or guardianship is in dispute.
Where the parents of the child are going through a divorce or have already done so, an application for access would usually be made under the Divorce Act, which allows people other than the spouses to seek access to a child with leave (permission) of the court. Manitoba's Child and Family Services Act allows a member of a child's family (such as a grandparent) who would not otherwise have a right to apply for access to ask a judge to make an access order. Non-family members can also apply for access to a child in exceptional circumstances. Under amendments to The Child and Family Services Act that came into effect in December of 2006, a judge hearing an access application by a third party must consider not only the best interests of the child, but all relevant matters including:
- the mental, emotional and physical needs of the child
- the nature of any pre-existing relationship between the applicant and the child
- where the application is made by a grandparent, the fact that a child can benefit from a positive, nurturing relationship with a grandparent
For more information on services to help families with access issues, contact:
Manitoba Family Services and Housing
2nd Floor – 379 Broadway
Winnipeg MB R3C 0T9
Toll free: 1-800-282-8069 (Ext. 7236)
To see a pamphlet on Grandparent and Family Access; Dealing with Child Access Issues, go to:
It is sometimes very hard for children when their parents are going through a separation or divorce, especially when the parents do not agree on custody or access. Children may have questions about the legal process or may need extra support to deal with their feelings about the changes in their lives.
Here are some resources for children:
205 - 414 Graham Avenue
Winnipeg MB R3C 0L8