Child Custody: The Details

Be sure to speak with your Toronto divorce lawyer as soon as possible to ensure that the best interests of the child(ren) are addressed and that your rights are protected.

Custody refers to the right to make major decisions about the child.  Where one parent has sole custody, that parent alone makes all major decisions about the child.  Where the parents have joint custody, the parents are to mutually agree upon major decisions concerning the child.

Custody is typically resolved out of court and is detailed in the separation agreement.

Custody is different from residence. Residence refers to with whom the child ordinarily resides.  If the child spends most of his or her time (more than 60% of time) with one parent, then that parent has primary residence.  If the child spends at least 40% of his or her time with each parent, then the parties have shared residence of the child.   Ordinarily, the non-resident parent has access to the child, which can include overnight visits, weekends, and mid-week visits.  In cases where the non-resident parent is alleged to be unable to care for the child or to be a danger to the child (i.e. substance abuse, psychiatric difficulties, history of violence), access can take place at a supervised access centre.  Alternatively, access may be supervised by another adult (ideally, this adult supervisor would be mutually agreed upon between the parents).

A parent can have joint custody of the child, but not shared residence (i.e. mom and dad make joint major decisions about the child, but the child ordinarily resides with just mom).  In rare cases, one parent can have sole custody, but the parents can have shared parenting (i.e. dad has sole custody and makes all major decisions himself, while the child resides jointly with both parents).

Shared parenting and joint custody work well if and when the parents can cooperate with one another, and share similar visions as to what is in the best interests of the child.

Ideally, the parents will be able to decide amongst themselves as to which custody and residence arrangement best meets the needs of the child and the functional realities of the parents.  If, however, the parents cannot reach a resolution, the parents may benefit from meeting with a parental coordinator/mediator who can assist in setting up a parenting schedule and working out details regarding custody.  If that is not possible, the parents may have to resolve their differences in court.

Voluntary agreements, called “parenting plans”, are usually the best and most common way of settling custody arrangements in Ontario. Only a small percentage of child custody disputes are actually decided in a courtroom.   A parenting plan can include everything about who will spend time with the child(ren) and when and who will make major decisions about the child(ren). The parenting plan can either be an informal arrangement or can be detailed in a separation agreement.

If the parenting dispute does reach the courts, the primary factor for the court in determining the final parenting arrangement is assessing the best interests of the child(ren).  In determining the best interests of the child, the court has recourse to such agencies as the Office of the Children’s Lawyer or a privately retained assessor.

Keep in mind that parenting plans are open to revision if there is a material change in circumstances.

Lastly, parenting is linked to child support.  If the parents have shared residence of the child, the payor parent may be entitled to a reduction in child support payments.  The issue of child support and shared parenting was addressed by the Supreme Court of Canada in Contino v. Leonelli-Contino in 2005.  This case makes it clear that the reduction in child support is not automatic, nor is there a clear set off calculation for determining the appropriate amount of child support in shared parenting arrangements.