Understandably, children are often the biggest concern for couples during a separation or divorce. This page will help to outline important topics regarding your children during this process.
When dealing with Child Custody in Canada our courts focus on one thing: The best interest of the children.
Child custody is the legal authority to make decisions on behalf of a child whose parents are not in an intact relationship.
In some situations, the decision of child custody can be amicably decided by parents at the time of separation. If this is the case, then it is important that the couple ensure their agreements are properly documented in a legally binding separation agreement.
In many cases, the parents agree on joint custody. However, there are times where a parent may want sole custody of children. For example, where a parent has never been involved in a child’s life, is unable to parent, or where a parent must leave the country permanently. In these cases, it may make sense for one parent to have sole custody. The many different types of custody are explained in greater detail further down this page.
If an amicable agreement is not possible then deciding who will get custody and what type it will be, gets determined by the courts. This decision is never made lightly and divorce law sets out some basic principles for a judge to follow when making this important decision.
When determining child custody in Canada a judge will consider items such as:
When determining child custody the past behavior of a parent will not be taken into consideration by the courts, unless their behavior reflects directly on the individual’s ability to act as a parent.
Many people are confused as to what exactly child custody means as it is also frequently used to indicate a child’s “residence”.
“Custody” means decision-making ability.
If you have custody of your children, then you are legally entitled to make all the important decisions regarding your children’s lives. These are decisions about education, religion, medical treatment, etc. For example, while parents may have “joint custody” (joint decision-making ability) the children may actually reside primarily with one parent most of the time and a child’s residence is determinative of who will be the Payer or Recipient, of child support.
If your custody case goes to court, there are any number of relevant factors that a court can consider in making a custody determination.
In high conflict or abusive situations, sole custody may be ordered to reduce the opportunity for further conflict or abusive interactions between the parents.
However, if the parents are able to communicate effectively with respect to matters affecting a child, joint custody may be appropriate.
If a court is asked to decide the issue of custody, these are some of the considerations that will inform the court’s decision as to what type of custody is in the child’s best interests which is the paramount consideration.
It is important to note that the type of custody is not synonymous with the
residence of a child, although typically a child will live primarily with the parent with sole custody. If the parents share joint custody, the child can either live primarily with one parent or have a shared residence with both parents (ie. 50/50, 60/40).
Going to trial over custody can be expensive and stressful for both you and your children. Below are some options that parents have to help them reach agreements on parenting arrangements and child custody, without having to go to court.
If at all possible it is always best to try and avoid going to court over your children. However, in some situations, this is the only option. In this case, a judge will hear both parents’ arguments and then make a ruling based on what they believe is in the best interest of the children.
Canadian custody laws are comprised of both the federal Divorce Act and
provincial custody legislation. An order for custody must be made with the child’s best interests as the paramount consideration in Canada.
The court also has inherent parens patriae jurisdiction to make a custody order with respect to a child if, for example, a child is at risk of harm and the governing laws do not provide for that child’s unique circumstances.
In summary, one or more of the following Canadian custody laws may apply to you:
Child custody is arguably the most important issue in a divorce and should always be approached with the child’s best interests in mind. Sole or full custody may be warranted if the parents are unable to effectively make decisions together for a child or if there has been domestic violence. Joint custody may be appropriate if the parents demonstrate an ability to parent cooperatively. The overall custody / residence schedule must be tailored to the unique circumstances of each case. If you wish to understand more about child custody or wish to speak with a professional for advice and possibly representation, get a local divorce lawyer consultation and someone will contact you to provide a free telephone consultation at your
When one parent is awarded custody of a child, the other parent is normally granted access – this is sometimes referred to as "visitation". Learn more about Child Access and visitation in Canada.