Child Custody Laws in Canada

Divorce is hard for a couple who have lived together for long enough to become dependent on one another. But there is something called not meant to be. That is why, before anything unwanted happens, divorce is the best option. Apart from the couple, the problem is also crucial for the children of the couple. They have to face the division from a very young age.

Mental shock is there; we all know it. But if the child is underage and financially dependent on their parents, making the right decision is needed. That is why discussing the custody of children is important.

So, we are here to talk about the ins and outs of the term “child custody” and how it works in Canada. Stay with us.

Child Custody: What is Custody of a Child, and How Does Custody Work in Canada?

The battle for custody of children mostly depends on the kind of separation. If the separation is mutual, they can decide whether to share joint legal custody of the children or not.

If the couple cannot decide on that according to child custody rights, the court will decide whether one parent will have sole custody of the children or not. In this case, you will have to file your claim and appoint an experienced child custody lawyer. The rest will be decided by the court.

What is Child Custody?

In simple words, it is the legal authority, especially if the children’s (underaged and financially dependent) parents are not together or in an intact relationship. In the event of taking any serious decision on behalf of the children, the legal guardian will be responsible.

As we mentioned before, in simpler situations, the parents can decide custody by themselves. After that, they can sign child custody agreements to fulfill the legal terms. On the contrary, if the separation is messy and the parents cannot decide their child’s custody, it will go to the court to decide on their behalf. The court will listen to both parties, their lawyers, and, of course, the children.

After that, considering everything, such as the nature of the parents, their income, and their affection for the children, the honorable court will give the final order regarding the custody of the child. The order could be sharing joint custody or giving someone sole custody; it is totally up to the consideration of the court.

Types of Child Custody

Here, we will discuss the different kinds of child custody considered in Canada.

1. Sole Maternal or Paternal Custody

If a parent has exclusively sole or full custody of the underage children after the separation, he or she is responsible for all of the child’s actions regarding decision-making. The other parent has the right to seek and receive information on matters concerning the child’s well-being.

The other parent’s meeting time may be limited if s/he is considered harmful to the children’s mental or physical well-being. This decision will be taken by access to the provided records from the child’s psychiatrist, dentist, teachers, neighbors, relatives, etc.

2. Joint Custody

In the case of joint custody, both parents are liable for making decisions on the underage and dependent child’s behalf. This is often referred to as joint custody. It could be ordered by the court. If the parents cannot compromise on a topic for the children’s well-being, they should recommend mediation or delegating decision-making authority to a parenting coordinator.

In most cases, courts will only grant this form of custody to separated parents who are willing to work together on parental issues. While all parents may have shared custody, the children’s residence and access conditions may differ significantly. It could be to one of the parent’s residences for a longer time; others can take the children for the weekend.

3. Shared Custody

In Canada, shared custody is described in the 1997 Federal Child Support Guidelines within the Divorce Act as a situation where the children live with each parent for at least 40 percent of the time.

4. Split Custody

Split custody means an arrangement in which one or more children from a marriage live with each parent. It has become common in recent years. Split custody is a form of shared custody that normally necessitates both parents’ approval.

Split custody is rarely granted without the children’s consent since it is in the best interests of the children to have them together. Normally, children are very close with their siblings, especially in their childhood.

So, it may cause double mental shock to their naive minds after the parents split. Hence, decide wisely because everything depends on the well-being of your children.

Who Decides the Custody?

Primarily, the decision is up to the couple concerned. But, in different cases, if the breakup is messy and ends in dispute, they can apply for the legal authority to interfere.

1. The Couple

In most cases, the courts would not intervene with a custody and access relationship reached by the parents. Where at all practicable, parents should strive to find a mutually acceptable compromise and set it in writing, such as in a separation agreement. This is by far the least inconvenient and cost-effective method of ensuring a secure custody transfer for children.

If the separated couple is unable to reach an understanding, they must either go to court or appoint a lawyer or a mediator to assist them in resolving the problems. Taking a custody battle to the courts is normally costly, volatile, and emotionally exhausting.

2. The Court

Normally, when deciding who gets custody of the children, courts usually consider what will be the best option for the children. Most of the time, the parent, who is stable both mentally and physically, as well as financially wants to get the child’s custody. If the children feel safe with any one of the parents, then the children’s consent is the sole matter of importance.

3. Family Mediator

A family mediator is usually someone who has worked in the legal or social work fields. They will receive advanced experience in assisting citizens in resolving conflicts. They will also assist all parents in discussing and deciding about the right plans for their offspring.

4. Therapy

Family therapists, psychiatrists, child psychologists, social workers, and other experts who specialize in the impact of divorce and separation on children may consult with parents. These practitioners’ experiences and advice will assist the parents in reaching an understanding.

The first two are the best options for any serious dispute. Others will also help beside them. The choice is yours.

Factors That Influence The Decision of The Court

I. Spouses

The general understanding is that when the couple is in a dispute regarding child custody, the spouses can claim the court’s decision. On the other hand, under normal circumstances, other relatives, such as aunts, uncles, and grandparents cannot apply for custody according to Canada’s Divorce Act.

II. Non-biological Parents

According to the Family Act, a parent is someone eager to take on all the responsibilities of the concerned child. So, if the child has no other options for parents, a non-biological parent can apply to ask for custody.

III. What about Same-sex Marriage?

The past behavior of an individual should not be included when making a custody or access order because it applies to the person’s fitness to behave as a father or mother to the child. Aggressive acts by a partner against the other spouse or the child are examples of conduct that applies to this capacity.

IV. Past Behavior of The Parents

The past behavior of an individual should not be included when making a custody or access order because it applies to the person’s fitness to behave as a father or mother to the child. Aggressive acts by a partner against the other spouse or the child are examples of conduct that applies to this capacity.

How to Get Full Custody of Your Child?

If you want full custody of your child, you need to assure the court that you are more than enough to bear the responsibility, and your child also wants to take your side. Besides that, there are other works, such as:

1. Collect your documentation that can prove that you are capable of raising a child. The documentation could be your bank statements and other financial papers.
2. Do not take the part of corruption to color someone to help your side.
3. It is important to present your good sides and compare them with those of other parties. But never insult them for their weak points. It will never bring you the desired result. So be careful.

Child Custody Laws in Canada

Canadian laws are made and applied to take the best care of their civilians.  Learn about changes in child custody cases in Canada. There are three kinds of laws that can be under the child custody sections. They are-

1. The federal Divorce Act
2. Provincial Custody Legislation Act
3. The court’s parens patriae jurisdiction, etc.

Conclusion

The decision about custody for children is a very vulnerable issue, especially since it is taken after the separation of the parents. I am always taking steps to ensure the best benefits for the children. A broken family is always hard to digest, especially for children. So, make the best possible decision about your child’s custody. If taking sole custody is best for them, then fight for it. Appoint any experienced child custody lawyer and work according to their suggestions.

In terms of your family, take every step wisely because their future depends on their childhood.

Frequently Asked Questions