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Court Orders of 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. For more information, visit the Best Interests of the Child section of this website.

What is joint custody?

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, with joint decision-making power. However, one parent looks after the child most of the time and makes the everyday decisions about the child’s care.

Some orders may not use the word custody at all, but specify the times the child will spend with each parent. Orders using that kind of wording will become more common when proposed changes to the Divorce Act anticipated to come into effect, March 1, 2021.  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 when the parents agree and appear to be able to cooperate with one another for the benefit of the child.

What is shared custody?

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. Shared custody requires parents to be able to effectively communicate and cooperate with one another.

What is sole custody?

Under the current law, a court order of sole custody to a parent means that parent has both legal and physical custody of the child. They make 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 a general 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. It will be up to the parents to decide what will constitute reasonable access in their situation.

Sometimes, especially when the parents have difficulty cooperating 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.

When there is a great deal of tension and conflict between the parents or when there are safety concerns, the court may order that a third party be involved to make access easier (e.g., 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 engages in risky behaviour like drinking and driving while driving the children, the other parent 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 there are genuine concerns about a child’s safety while in the care of a parent, the court may order that another person supervise the access.

Specialized services are available in Winnipeg and Brandon to supervise the pick-up and drop-off of children for purposes of access, or to supervise the access itself. For more information, contact:

Winnipeg Children’s Access Agency
http://www.wcaa.ca/

Brandon Access Exchange Service
http://www.brandonaccessexchangeservice.com/

The Family Maintenance Act says the non-custodial 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 decision-making about the child. The Divorce Act has a similar provision.

What are assessments?

When separating spouses or guardianship applicants have tried and failed to reach agreement on the care of their children, they may choose to proceed to court. In some instances, the judge may order an assessment, resulting in a written report with recommendations on how the needs of the children may best be met.

The Family Law Modernization Act states that in a proceeding respecting custody, access or another related matter, a judge or master may appoint a family evaluator, a social worker or other person to evaluate the matter. The courts follow legislation and guidelines in appointing evaluators and have the ability to order costs to impacted parties.

An evaluator will interview and observe the parents and the children and may also speak to others, such as the child’s day care provider or teachers. The evaluator writes a report with recommendations and gives it to the court and the parents. If the parents still do not 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.

Parents can hire a private evaluator at their own expense, but a private assessment needs to have the agreement, cooperation and participation of both parents. It is recommended that parents and their lawyers perform their due diligence and ensure that the individual they are contracting has the necessary training, expertise and experience to perform the task. The parents and their lawyers should ask about the person’s background, review their qualifications and satisfy themselves that the proposed evaluator is qualified. In these cases, the report produced by the evaluator is the property of the parents, who can chose to release it or not.

How does custody and access impact moving or relocating?

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. Even when the non-custodial parent only has 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. For more information, visit the Enforcement section of this website.

Note that changes to the Divorce Act, anticipated to come into effect March 1, 2021, set out a framework to give guidance to parents and courts to help resolve disputes over relocation after separation and divorce. These will include:

  • notice requirements for a proposed change of residence or relocation;
  • additional best interests criteria for relocation cases; and
  • principles to help assess whether the relocation should occur
    • For example, based on how parental responsibility for the child is shared

What happens when one parent lives outside of Manitoba?

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.

Can changes to custody and access orders be made?

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
  • when a custodial parent wants to change the access order, because the other parent is not caring for the child adequately during visits
  • when 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. Please visit the Resolution section of this website for more information.