The terms “custody” and “access” are mutually exclusive legal terms, although they are used interchangeably, and often incorrectly, by non-lawyers.

A parent has “custody” over a child when he or she has the right to make important decisions concerning the child, including decisions about the child’s education, medical treatment, religious upbringing and extracurricular activities.

A parent has “access” when he or she is with the child. Access can be supervised or unsupervised and can include any number of overnight stays.

A parent can have custody of a child who lives primarily with the other parent. In some cases, both parents may have “joint custody” over a child.

Whenever children are involved, the overarching principle applied by any court is always what is in the “best interests of the children”. Before making any order, even where the parties consent, a court will inquire into whether the order will be in the best interest of the children.

A court will consider a number of factors in making a determination as to whether an order in in the best interests of the children, including the love, affection and emotional ties between the children and each parent, the ability of each parent to care for the children, the permanence and stability of the environment provided by each parent and whether a parent supports the child’s relationship with the other parent. Once the children are old enough, a court will also consider a child’s preference on parenting matters.

A parent that does not reside with the children must pay child support to the parent with whom the children reside. The amount of child support payable is set under the Child Support Guidelines and is generally determined based on the total income of the parent, as set out on line 150 of his or her most recent tax return.

In addition to the “table amount” of child support under the Child Support Guidelines, the parents are obligated to share the costs of any special or extraordinary expenses (e.g., day care, education, sporting events, other extracurricular activities) in proportion to their respective incomes.

When the children divide their time approximately evenly between their parents (i.e., at least 40% of their time with each parent), then the parties must either agree to share all expenses in proportion to their incomes or calculate the “table amount” of support payable by each to the other, with the parent with the greater income paying the difference in “table amounts” to the other parent.

Many parents attempt to reduce or eliminate their obligation to pay child support by sheltering their income (e.g., in a corporation) or by refusing to work full-time or at all. Needless to say, the courts are on to this and will provide relief to the parent entitled to child support. Too often, however, this requires a court order and a prolonged battle. For that reason, it is paramount that you retain a skilled and experienced lawyer to fight for you and ensure you are receiving the full amount of child support to which you are entitled.