Child custody is a major concern in family law. Every year Canadian attorneys handle thousands of cases to secure child custody for parents. The decision on child custody is influenced by court proceedings as well as the law of the country. So, what are the rules for child custody in Canada? Here is a look at the rules governing child custody and the way parents can navigate the laws for the best-possible outcomes.
Overview
Canadian child custody rules fall under the ambits of the Divorce Act. The Divorce Act was last amended in March 2021. It is the federal law associated with divorce and other resultant relief offered to parents and their child/children. The current laws have replaced the term ‘custody’ with “parenting order” and “parenting arrangements to eliminate any negative connotations.
Some of the key attributes of this law are as follows:
Central Principle
Even when there are laws regarding child custody, the decisions are generally taken on the basis of the central principle of ‘best interests of the child’. This means the child’s well-being is the top priority when making any decisions.
Shared Parenting
In the Divorce Act, there is a general focus on shared parenting. In simple terms, the law presumes that both parents have both equal rights and responsibilities in their child’s upbringing. In many situations, sole custody arrangements can be ordered. Still, the priority is to have the child spend most of their time with both parents. The only exception to this shared parenting principle is when such an arrangement is not in the child’s best interests.
Factors Affecting Child Custody
The courts usually consider the following factors when they determine child custody:
- The kind of relationship between the child and each parent
- The child’s needs and age
- The parents’ living arrangements
- Each parent’s ability to provide care and support
- Each parent’s physical and mental health
- Linguistic, spiritual, and cultural upbringing
- Any instances of family abuse or violence
Parenting Agreements
Many times, parents reach agreements outside the court. Such an agreement outlines their separate parenting time and responsibilities. It is important that such agreements are reviewed by an attorney to enforce them. When you are unable to enter an agreement on your own, you can seek the help of a court.
Presumptions
Courts can use many factors when determining the best interests of the child. Still, there are certain presumptions that govern their decisions. These include:
- Stay at Home Mothers: Stay-at-home mothers generally gain their child’s custody over a working husband. When a child is young, courts prefer that they live in an environment where they have a parent around to care for them.
- Primary Caregiver: If you are the primary caregiver for your child and you can prove this in court, the court will consider you to be ideally suited to care for your child. In this case, you are highly likely to receive your child’s custody.
- Status Quo: If you have already gained control of your child after separating from your partner but before an official declaration is made, the court will prefer the current parenting arrangement to continue.
Types of Child Custody Arrangements
Canadian laws have four different types of child custody arrangements. These include:
- Full Custody: As the name suggests, a single parent gets the sole custody of the child. Such an arrangement rarely occurs in divorces.
- Joint Custody: Joint custody is more common and provides both parents with equal responsibilities over the child.
- Shared Custody: In such an arrangement, both parents share the responsibility for caring for and housing their child. The child will be spending equal amounts of time with both parents.
- Split Custody: This arrangement can be made by the court when more than one child is involved. For example, if there are two children, split custody can mean that one child will live with one parent while the other lives with the other parent.
Generally, child custody cases go in the favor of mothers for children aged 12 and under. As a child gets older, things can become favorable for fathers to receive custody. Still, the court will take all the factors and circumstances into account before making a decision.
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