Joint Custody and How Custodial Rights are Established

If you're going through divorce and you have children, one of the first things you'll need to decide is how to care for your children. Today, we'll be explaining joint custody, and how custodial rights are established in Canada.

If you have children, and you’re undergoing separation and divorce, one of the first things you’ll need to decide is how to care for your children. Where will they live? How will key decisions about education, healthcare or religion be made?

Hello, I’m Nick Slinko. Today, I will be talking to you about joint custody of your children, and how custodial rights are established in Canada.

What is joint custody?

The concept of joint custody is something that is often misunderstood by many people. The common assumption is that joint custody means that separated parents spend a roughly equal amount of time with their child, or their children, after the separation process is complete and the parties are, presumably, living in separate residences.

The reality is that custody has to do with decision-making, and ultimately very little to do with where your children live. Essentially, this means you could have joint, or even sole custody of your child or children, and spend very little to no time with them. Practically speaking, parents with sole or joint custody do, in fact, spend significant time with their child or children after separation, but I wanted to illustrate to you the difference between custody and residency. They are two very different legal concepts.

Custody of a child refers to how major decisions for them will be made and by whom. This typically encompasses four major areas: healthcare and medicine; education; religion; and mobility. In cases where both parents are good parents and they are able to communicate with one another regarding the children’s needs and interests, both parties may agree to a joint custody arrangement, meaning that these decisions would be made by both parents together. However, the determination of the children’s primary residence is a separate issue, and is more complicated. During future blogs, I will address residence and its impact on support.

How are decisions made about who should have custody of a child if the parents cannot agree? What are some of the factors that are considered?

If both parents are capable of communicating with each other insofar as the children are concerned, despite whatever animosity may exist between them, then a joint custody arrangement is feasible. Where either parent has a genuine concern about the other’s ability to care for the children, then custody may be disputed.

In either situation, custody of and access to children of separated parents is governed by Section 16 of the Divorce Act, which requires a court to take into account only the best interests of the child in any application for custody of or access to a child. In Canada, the concept of “best interest of the child” is a very strong undercurrent in Family Law. And, the notion of best interests is open to interpretation.

The focus is not so much on the conduct of the parties leading up to the separation or the age/gender of the parties or their children. The most important thing in determining what is best for the children is looking at the status quo, while also acknowledging that it is best for the child to maintain a relationship with both parents. Who is the primary caregiver for the children? If both parents are heavily involved in the upbringing of the children, what specifically, is their role? It is important to try and not disrupt the lifestyle and routine of the children by virtue of the separation.

Stability and consistency are also important and given weight by courts. The views of the child may also be taken into consideration, depending on his or her age.

For more information on custody, access, and other child-related issues, please visit our website, or call us at (905) 581-7222 to schedule a consultation.

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