Last Updated: November 23, 2010
If parents have lived together after the birth of a child, under Saskatchewan law, they are the joint guardians of their minor children. This can be changed by agreement or court order. When parents separate, custody and access arrangements should be dealt with. Access and child support are not dependent upon each other - they are two different legal concepts.
Custody is a parent's right and responsibility to care for a child. Custody includes the legal right to make decisions regarding things like a child's schooling, religious upbringing, health care, and participation in extracurricular activities. It also includes the right to have the child live with the parent.
Sole custody is where only one parent has the right and responsibility to care for the child and the child lives with that parent.
In other cases, both parents share the right and responsibility to care for the child. The child can live with each parent part of the time, or with only one parent while both parents share in the child's upbringing.
Access refers to the right of the child to spend time with the non‑custodial parent. The purpose of access is to allow the child to continue to have a relationship with the other parent. Access cannot be refused because of problems related to child support.
The parent with access can spend time with the child, and has the right to receive information about the child's education, health and general wellbeing.
Access may be left open, so that the parents can decide together how parenting time will be shared, or allowed only at certain times on certain days. Also, a court may refuse access or order supervised access if the parent who wants access is violent, will neglect the child, or will put the child in danger.
Child support or maintenance is a duty from one parent to the other parent, and must be paid even if the paying parent cannot get access or chooses not to visit the child.
Custody and Access Decisions
Anyone who has a sufficient interest in a child may be able to get custody or access. In this publication we use the term "parents", but it is meant to include parents, grandparents, or others. There are several ways custody and access can be decided.
Parents may be able to work out an agreement about who will get custody, how access will work, and how their agreement can be changed. After parents work out their agreement, they may want to put it in writing.
Sometimes parents use a mediator to help them reach an agreement. A mediator does not take sides, or tell parents what they should do. Instead, a mediator is an objective third party who discusses possible solutions to their problems. Some lawyers are also trained mediators. Once an agreement is reached, a mediator can help parents put their agreement in writing. Usually both parents will share the cost of a mediator.
To find a mediator you can contact the Dispute Resolution Office of Saskatchewan Justice or Conflict Resolution Saskatchewan, look through the yellow pages, or ask a friend, counsellor, social worker, or lawyer to recommend a mediator.
If parents cannot agree themselves, or through mediation, each parent may decide to go to a lawyer or apply for a Legal Aid lawyer if they meet the financial criteria.
A lawyer can give a parent legal advice on their situation. They can talk with the other parent's lawyer to work out an agreement, record any agreement reached, and explain how it will work. If an agreement cannot be reached, a lawyer can represent the parent through court proceedings.
Just because you seek legal advice does not mean that you are headed for a long battle in court. A number of lawyers are choosing to practice collaborative family law. With this approach the parties and their lawyers try to negotiate fair and reasonable settlements. They seek a win-win solution to the problems at hand. Each party still has their own lawyer, but both parties and their respective lawyers commit to resolving all issues arising out of the relationship breakdown outside of the court process.
If the parties agree to a collaborative law approach, but fail to reach a settlement and decide to go to court, both lawyers must withdraw from the case. Each party must then get new legal representation. The process is designed to encourage the parties to settle outstanding issues within a legal framework, but without using the court process. It is hoped that with this perspective, the parties will arrive at a mutually satisfactory resolution, and avoid much of the bitterness that can arise from a more adversarial approach.
If parents cannot reach an agreement by themselves, or through a mediator or lawyer, they can go to court.
Before a court will determine family law matters, parents and their lawyers must meet with a judge. The judge will try to help them work out a settlement.
If parents end up going to court, each parent should have their own lawyer. Each lawyer can put evidence before the court and a judge will then determine custody and access.
To decide these matters, the judge considers only what is in the best interests of the child. This involves looking at the child's needs, the relationship the child has with his or her parents and, depending on the child's age and maturity level, the child's own wishes.
The court does not consider the needs or wants of the parents, but will consider which parent can best meet the needs of the child.
The judge may also order that a custody and access assessment be conducted to help reach a decision. The assessment is conducted by a social worker or psychologist who works with the Family Law Division of the Court of Queen's Bench.
Once the judge makes a decision regarding custody and access, a court order that outlines the judge's decision is prepared.
If there is no custody order, and either parent is afraid the other parent may take the child away or hurt the child, they should get a lawyer and go to court for a temporary, or "interim", custody order. Anyone who reasonably believes that a child is being abused or neglected has a legal duty to report this to the police or a child protection worker.
If one parent has custody, but is afraid that the other parent will harm the child during visits, the parent with custody can ask the court to deny access or put conditions on access, such as having another person present during visits.
Changing an Agreement
Both parents can agree to change a written custody and access agreement. They can work out what changes to make, make the changes in writing, and both sign the changed agreement.
Each parent may want to see a lawyer to get advice about the changes.
If parents cannot agree on the changes, they can go to a mediator, a lawyer, or to the court.
Changing a Court Order
A parent can go back to court and ask for a custody order to be varied. The judge will consider changing the custody order if the child's needs have changed, or if either parent's ability to care for the child has changed. For example, if the child gets sick and needs special care and medical treatment, the child starts to act differently and needs different discipline, or the parent overcomes an alcohol problem and can now care for the child.
If both parents agree to the change, they can go to the court and together ask the judge to make the changes to the order.
Dealing with Problems
Sometimes one parent may try to ignore the custody and access agreement or order. For instance, the parent with access may not return the child on time, or take the child without telling the other parent, or not spend their access time with the child. Other problems may include the custodial parent not allowing access or placing unreasonable restrictions on access.
If parents are unable to resolve these problems themselves, or with the help of a mediator or lawyer, either parent may ask the court to help deal with the situation. For example, the court can make an order allowing the police to find and return the child, order that access be limited or supervised, or order that the parent with access give their address and phone number to the parent with custody.
The court can also help a parent who is being refused access. The court can order that the parent with custody give access to the other parent at specific times, give extra access to make up for lost time, or pay the other parent's costs, such as travel expenses, that resulted from not being able to see the child.
A custody order made in one province is not always effective in another province. If a parent wants to use a custody order in another province, they can ask a court in the other province to give effect to the order.
One parent may try to take a child away, maybe to another province, so that the other parent cannot have custody. This is a crime. If this happens, the other parent should call the police. The police can get the child back, even if the child is in another province, and can arrest the parent who took the child away.
The parent who takes the child away can be charged with a criminal offence, unless the other parent consents to the child being taken away, or the child is removed to protect them from harm or abuse.
For More Information
Other PLEA Publications
Child and Spousal Maintenance
When Couples Separate
Conflict Resolution Saskatchewan
Toll Free: 1-866-565-3938
Dispute Resolution Office
Regina (306) 787-5747
Family Justice Services Branch
Regina (306) 787-8961
Toll Free: 1-866-229-9712
Collaborative Lawyers of Saskatchewan
Toll Free: 1-866-347-8545