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.
What is Child Custody?
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:
- First and foremost the best interest of the children.
- The parent-child relationship and bonding.
- Parenting abilities of each individual.
- Each parent’s mental, physical and emotional health.
- The typical schedule of both parents and children.
- Available support systems of each parent (for example, help and involvement of grandparents or other close relatives).
- Sibling issues. Generally, brothers and sisters will be kept together, but under some circumstances, it may be necessary to consider separating them.
- Care arrangements before the separation. Who was the primary caregiver?
- The child’s wishes. The Office of the Children’s Lawyer is often appointed by the court to help in determining the child’s wishes. Once a child turns 12 years of age, his or her wishes to live with one parent or another are usually respected by the courts.
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.
Understanding Child Custody:
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.
Types of Child Custody in Canada:
- Sole Custody (or Full Custody) – If a parent has sole (also known as full) custody of a child, that parent is responsible for making all decisions affecting the child. The other parent is entitled to request and be provided with information relating to matters affecting the
wellbeing of the child. This can include access to information from the child’s doctor, dentist, and teachers.
- Joint Custody – If parents have joint custody of a child, they are both responsible for making decisions on behalf of that child. This is also known as joint legal custody. If there is disagreement on an issue, the parents may consider mediation or a parenting co-ordinator given the authority to decide the issue. Courts will normally only award this type of custody to parents who are able to cooperate on parenting matters. While parents may have joint custody, the residency / access arrangements for the children may vary widely.
- Shared Custody – This is when both parents have joint custody of the children, and both parents spend at least 40% of the time with their children. This is also known as joint physical custody.
- Split Custody – This is when one parent has custody of some of the children, and the other parent has custody of the remaining children. Courts try to never split up up younger children from their siblings. However, older siblings often choose to live with different parents.
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).
Deciding on Child Custody without Going to Court:
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.
- Family Mediator- A mediator is generally a person with a legal or social work background. They will have special training in helping people to resolve disputes. A mediator works with both parents to help you to discuss and decide on the best arrangements for your children.
- Lawyers -You and your spouse can retain separate lawyers to help you understand your legal rights and obligations and negotiate an out of court parenting agreement. Another option is to participate in the Collaborative Law process. In this approach a team of Collaborative Family Lawyers which may include Divorce Coaches, Child Specialists, and Financial Specialists guide you through the process.
- Therapist – Parents can meet with family therapists, counselors, child psychologists, social workers, or any other professionals, who specialize in the effects of separation and divorce on children. The parents can use the knowledge and guidance of these professionals to help them negotiate an agreement.
- Parent-Education Sessions- In Canada, many courts will host parent-education sessions. These sessions will present different options for settling issues about separation and divorce and also discuss the impact it has on children.
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.
Child Custody Laws in Canada
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:
Learn More About Child Custody Laws
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
convenience.
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.
Need a Lawyer for Child Custody?
If you’re facing a child custody dispute, the legal process can be overwhelming and emotionally charged. Seeking the help of an experienced lawyer can provide clarity and guidance through this challenging time. A family lawyer specializing in child custody cases will understand the complexities of Canadian custody laws across provincial legislation and work to protect your rights and your child’s best interests.
A child custody lawyer can help navigate negotiations, draft legally binding agreements, and represent you in court if necessary. They can also provide advice on different custody arrangements, including sole, joint, and shared custody, as well as mediation options to avoid a lengthy court battle. Don’t go through this alone; a skilled lawyer can make a significant difference in securing a favourable outcome for you and your children.
