How does Child Custody in Canada Work?

May 6, 2021

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Child custody is one of the most challenging aspects of legal separation; especially for children. They need to experience the ugly battles at the court and home. More so, if parents are unaware of all the details related to child custody, and create the whole situation more difficult for themselves and the family.

That’s why, in this article, we are covering all the details that you should be knowing regarding child custody in Canada.

Firstly, what does child custody exactly mean?

Child custody refers to legal decision-making of complete care, maintenance, and control of the child. In most cases, it’s the biological parents who amicably decide about the well-being of their child and take the decisions with mutual consideration.

However, that might not be the case if parents have not ended their marriage on good terms or are unable to come to a mutual agreement, they can file the custody case in order to let the court decide who is the best person to manage the complete upbringing of the child, including education, healthcare, residence, etc.

During the decision-making regarding child custody in Canada, the judge considers the following factors:

  • Where does the best interest of the child lie?
  • What kind of relationship or bond does the child share with both the parents?
  • Prior to the separation, who had been mostly engaged in the well-being of the child?
  • How much time do both the parents have for the child from their busy schedules?
  • What is the situation of both the parents’ physical, emotional, and mental health? Are they fit enough to manage the upbringing of the child?
  • Which individual carries better parent capabilities?
  • In case of more than one child, sibling issues- whether it would be right to keep all the children together or should be separated due to the circumstances?
  • What is the child’s/children’ wish? 
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Generally, a children’s lawyer is appointed by the judge to learn about the child’s point of view. The child with 12 years or above age can make the decision regarding who they would like to live with from both the parents and the decision is respected by the judge.

Types of Child Custody in Canada:

1. Sole Custody/ Legal Custody

As the term signifies, sole custody means complete custody of the child. If a parent is entitled to sole custody of the child, he/she is permanently responsible for the complete upbringing of the child. That includes everything from healthcare to education to stay.

In such cases, the other parent can request information and status of the child’s education, health, etc. from the parent with the legal custody of the child. 

2. Joint Custody

Just the way sole custody allows the parent 100% care-taking of the child, joint custody allows 50-50 control over the child. In such arrangements, parents share an equal amount of responsibilities of the child’s upbringing. 

Mostly, the court concludes with such arrangement only when the parents are capable enough to handle the legal joint custody and take mutual decisions regarding the parenting. The court creates a rotating schedule wherein both the parents get equal time and responsibility.

3. Shared Custody

Just like joint custody, parents with shared custody house the children and spend roughly equal amount of time with the children. Not all the important decisions are shared between them, but they need to timely manage the visitation as decided mutually.

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If both of them or one of them fails to visit as decided, the judge may step in to figure out a schedule for visitation and divide the parenting rights equally. This type of custody is preferable if,

  • One of the parents fails to act according to decisions taken and is away from home for a prolonged time period.
  • One of the parents has been financially weak and incapable of managing the parenting requirements.
  • One of the parents is physically or mentally unwell and incapable of taking care of the child.

4. Split Custody

Split custody is another kind of joint custody that might occur when parents have more than one child. So, for instance, if the parents have two children, one parent will be given complete responsibility for one child while another will be taking care of the other child.

In some cases, children live permanently with the parent they were decided to live with during the custody, while in some cases, children spend equal time with both the parent through rotating shifts.

Generally, the court doesn’t encourage splitting the young children and concludes with split custody. Still, there are instances when older siblings prefer living with different parents, and the court might approve the same.

How to Opt for Child Custody in Canada?

Well, you can decide on child custody in Canada with the court or without court.

With Court

Though going to court sounds more legal and transparent, it certainly makes things more challenging for both parents and children. Going for the trials regularly for custody is not only expensive but also mentally as well as emotionally challenging for everyone involved.

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This option is the last resort for the parents who cannot mutually come to an agreement and cannot decide the child’s best interests.

Without Court

If you and your ex-partner are ready to be considerate about each other’s opinion and do not want legal court hearings to take an emotional toll on you and your child(ren), then getting it sorted outside the court is the best way.

Outside the court, you have many options to figure out about your child’s upbringing post the legal separation. You can consult a family person who has sound knowledge of such legal matters and can act as a mediator to help you best decide.

Or, you and your ex-partner can individually consult legal lawyers who can provide you complete information about each and every aspect of child custody and help you draft an outside-the-court mutual agreement. 

Well, parents can even consult a therapist, counselor, or child counselors who can provide insights into how such separations can impact the child’s health and the best approach to move ahead with the custody.

The bottom line is that child custody certainly one of the toughest phases for everyone involved. For the best interest of your child(ren), try to opt for a mutual agreement that doesn’t create any adverse impact on their young minds.

We hope this information is helpful to you and guide you during your custody phase.