Access Legal Definition:

A non-custodian parent's bundle of rights or times and days during which he/she has exclusive time with the child of the separated parents.

Related Terms: Guardianship , Custody

Access is often contrasted with custody. Upon separation, parents often choose to have the child primarily reside with one, and have occasional visits with the other; otherwise known as custody and access.

In some jurisdictions, a parent's access rights are also known as visitation rights.

In a 1915 decision which partly still rings true, Justice Middleton of the Ontario Supreme Court (Re M) wrote of a custodial parent who insisted that the non-custodial father exercise access to the child in the presence, and at the residence of the ex-mother-in-law (a state of affairs with which Justice Middleton ultimately condoned!):

"Access ... means access to children who are in the custody of some other person. Custody is a much larger and more important thing than access."

This echoes an earlier English decision, Evershed v Evershed, in which Justice Kay wrote:

"Access is a thing which can only be dealt with after the question of custody is determined. It means access to the children who are in the custody of some other person."

In Glascow v Glascow, the Nova Scotia Court added:

"Access, in custodial matters, is a limited right which permits the non- custodial parent to be in contact with and maintain if not foster a relationship with his or her child.

"Access is the ability to approach and communicate between a parent and the child and usually in unfettered circumstances and conditions. The length of the access is determined either by the parties or if necessary by a court. It, like custody, is generally without conditions but in some circumstances the courts or parties see fit to impose certain restrictive conditions to access in order to attempt to make the liaison between the parent and the child a meaningful one.

"Just as the custodial parent should have the opportunity to bring up the child or children in the manner he or she sees fit, so too the access parent should have the unimpeded opportunity to enjoy and communicate with the child or children. The main reason for such wide rights and powers is that the rights of custody and access in essence do not belong to the parents but rather to the children since, in all cases, the paramount consideration is the welfare of the children and it is in their interest that custody and access decisions are made by the parents or the courts."

This restrictive judicial interpretation has been superseded by statute such as the Divorce Act which states, at §16(5):

"Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child."

 In Young v Young, Justice l'Heureux-Dubé of Canada's highest court attempted to reconcile the two interpretations by adopting these words:

"In contrast to custody, there is little jurisprudence or doctrine on the nature of access rights, probably because access has never been understood to confer entitlements on the non-custodial parent other than those which are specified in court orders.  The fundamental principle, however, that has always been recognized by courts is that the right to access is limited in scope and is conditioned and governed by the best interests of the child.

"Access can thus be regarded as a form of temporary possession with the powers granted by an access order being limited to those necessary to ensure the well-being of the child during the visitation periods.  Access confers no right in the parent to influence the upbringing of the child -- that is for the parent with custody or guardianship.

"However, under the Divorce Act ... a parent granted access has a right to make inquiries and to be given information as to the health, education and welfare of the child, unless otherwise ordered by a court.

"Thus, the role of the access parent is that of a very interested observer, giving love and support to the child in the background."

REFEFENCES:

  • Evershed v Evershed, 46 Law Times Reports 690 (Chancery Division, 1882).
  • Glascow v Glascow, 102 APR 13 (1982, Nova Scotia Family Court)
  • Re M., An Infant, 22 DLR 435 (1915, Ontario)
  • Young v Young, [1993] 4 SCR 3 (Supreme Court of Canada)

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