In Ontario, both parents have an equal right to custody – unless there is a court order or negotiated agreement between you and the other parent, that says otherwise. Until that happens, there are no set rules about who your child lives with, or who he or she spends time with. However, these unstructured scenarios can become contentious, and most separated parents will find it necessary to strike an agreement or have a court resolve their differences.
In that case, the court order or agreement may specify that it is your ex – rather than you – who is the parent with primary custody of the child you have together. It all hinges on your unique circumstances. In making its order, the court is guided by considering what is in the “best interests” of your child, and by the legal presumption that he or she will likely benefit from spending as much time as possible with each of you, even though you are separated. The court will aim to find a solution that balances all of these competing factors.
If your question pertains to a scenario where you are already designated the primary custodial parent by court order or agreement, and you have concerns that your ex will take your child for an access visit and will not return him or her, then this amounts to a breach of the court’s order. There are several court-related mechanisms that can be pursued in that scenario, and you should promptly consult an experienced family lawyer to get advice.