Common Law Partners and Parenting

Today, we’ll be discussing the rights of common law spouses, as they pertain to custody and access.

Hello, my name is Shazia Hafiji and I am an Associate at the Feldstein Family Law Group.

Today, we’ll be discussing the rights of common law spouses, as they pertain to custody and access.

It is important to note here that Bill C-78, which has recently been tabled by Parliament, proposes to replace the terms “custody” and “access” with “parenting orders,” “decision-making responsibility,” and “parenting time.”

Although the law pertaining to property division applies differently to common law and married spouses, all parents have the same legal rights and obligations with respect to children – and this is regardless of whether the parents were married or common-law.

When you and your partner separate, you’ll have to make several important decisions regarding your children.

First, you’ll have to decide where your children will live. You and your former spouse will need to determine whether your children will reside primarily with one of the parents, or whether you’ll have shared parenting time. If you decide that the children will reside primarily with one parent, then you’ll have to negotiate and decide on a reasonable parenting (or access) schedule for the other parent.

Apart from the children’s residence, you’ll also need to determine which parent (or whether both) will be responsible for all of the major decision making regarding the children (for example, their education, health, and religious upbringing). If you and your common law spouse have joint decision-making responsibility, this would mean that you will both be jointly and cooperatively making major decisions about your children together.

Alternatively, if you and your common law spouse are unable to act cooperatively or communicate effectively, it may be more appropriate for one parent to have sole decision-making responsibility. This parent will be responsible for making all major decisions for the children, and will not need the other parent’s consent when making such major decisions.

It’s important to remember though that such decision making responsibility only refers to major decisions: for example, decisions pertaining to the children’s education, religion and healthcare. The arrangement for decision-making will have no bearing on a parent’s parenting time, and further will not affect or negate a parent’s right to make inquiries and be kept informed of decisions regarding their child’s health, education and welfare.

Lastly and perhaps most importantly, it’s important that you know that the overarching and key principle in terms of all child-related issues is the “best interests of the child.” So, whether the issue pertains to decision-making, parenting time, or child support, the focus is always on what is best for the child; and not on what each or either parent wants or needs.

If you would like more information on custody and access, please feel free to visit our website at www.separation.ca or call us at 1-855-909-9903 to schedule a consultation.

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