Q. IMMEDIATELY UPON SEPARATION, WHO HAS CUSTODY OF THE CHILDREN?

A. CONSIDER THE FOLLOWING PROVISIONS OF THE FAMILY RELATIONS ACT

Persons who may exercise custody

34 (1) Subject to subsection (2), the persons who may exercise custody over a child are as follows:

(a) if the father and mother live together, the father and mother jointly;

(b) if the father and mother live separate and apart, the parent with whom the child usually resides;

(c) if custody rights exist under a court order, the person who has those rights;

(d) if custody rights exist under a written agreement, the person to whom those rights are given.

(2) If persons have conflicting claims to custody under subsection (1), the following persons may exercise custody to the exclusion of the other persons unless a court otherwise orders:

(a) the person who has custody rights under a court order;

(b) if paragraph (a) does not apply, the person granted custody by an agreement;

(c) if paragraphs (a) and (b) do not apply, the person claiming custody with whom the child usually resides;

(d) if paragraph (c) applies and 2 persons are equally entitled under it, the person who usually has day to day personal care of the child.

Jurisdiction to make custody or access orders

35 (1) Subject to Part 3, a court may, on application, order that one or more persons may exercise custody over a child or have access to the child.

(1.1) The reference to "persons" in subsection (1) includes parents, grandparents, other relatives of the child and persons who are not relatives of the child.

(2) An order for access may be made whether or not a custody order is made.

(3) If a person has not received notice of a proceeding or has not been given opportunity to be heard in the proceeding, custody must not be granted to that person.

(4) An order for custody or access may include terms and conditions the court considers necessary and reasonable in the best interests of the child.

(5) An access order referred to in section 54.2 (3) of the Child, Family and Community Service Act is, for the purposes of this Act, an order for access made under this section.

Civil enforcement of custody rights

36 (1) If custody of a child is awarded to a person by an order made or enforceable under this Act and the person is denied the exercise of custody, a court may, on an application made without notice to any other person, order that the child be apprehended by a peace officer and taken to the person awarded custody.

(2) For the purposes of locating and apprehending a child in accordance with an order under subsection (1), a peace officer may enter and search any place where he or she has reasonable and probable grounds for believing the child may be.

Order restraining harassment

37 On application, a court may

(a) make an order restraining any person from molesting, annoying, harassing, communicating or attempting to molest, annoy, harass or communicate with the applicant or a child in the lawful custody of the applicant or both the applicant and a child, and

(b) require a person named in an order under paragraph (a)

(i) to enter into a recognizance, with or without sureties, or to post a bond, and

(ii) to report to the court or a person designated by the court, at the times and places and for the period of time the court directs.

Order prohibiting interference with child

38 (1) If a court makes a custody order or a custody order or separation agreement is enforceable by a court, the court may

(a) order that a person must not enter premises, including premises the person owns or has a right to possession of, where the child resides from time to time,

(b) order that a person must not make contact or endeavour to make contact with or otherwise interfere with either the child or any person who has custody of or access to the child, or

(c) if the court concludes that the person named in its custody order may not comply with an order under paragraph (a) or (b), further order that the person

(i) enter into a recognizance, with or without sureties, in any reasonable amount that the court thinks necessary,

(ii) report to the court or person designated for the period of time, and at the times and places, as the court considers necessary and reasonable,

(iii) deliver up to the court, or a person designated by the court, any documents that the court thinks fit, or

(iv) transfer specific property to a trustee named by the court to be held subject to the terms and conditions specified in the order

or any combination of these.

(2) The Provincial Court must not make an order under subsection (1) (c) (iv).

Q. WHAT DOES JOINT GUARDIANSHIP MEAN?

A. The Master Joyce Provisions of Joint Guardianship stipulate as follows:

Joint Guardianship of the children of the marriage is defined as follows, namely

i. The mother and the father are to be the joint guardians of the estates of their children;

ii. In the event of the death of either parent, the remaining parent will be the sole guardian of the person of the children;

iii. The parent, who has the primary responsibility for the day to day care of the children will have the obligation to advise the other parent of any matters of a significant nature affecting that child;

iv. The parent who has the primary responsibility for the day to day care of the children will have the obligation to advise and discuss with the other parent any decision which has to be made of a significant nature affecting the children; inclusive of decisions concerning the health (except emergency decisions), education, religious instruction and general welfare of the children;

v. The parent who does not have the primary residence of the children will have the obligation to discuss the foregoing issues with the other parent and each parent shall have the obligation to try to reach agreement on those major decisions affecting the children;

vi. In the event that the parents cannot reach agreement with respect to any major decision affecting the children, despite their best efforts, the parent who has the primary responsibility for the day to day care of the children shall have the right to make such decisions;

vii. The parent who does not have the primary residence of the children shall have the right, under the provisions of the Family Relations Act, to seek a review of any decision which that parent considers to be contrary to the best interests of the children;

viii. The parents shall each have the right to obtain information concerning the children directly from third parties, including, teachers, counselors, medical professionals and third party caregivers.