Child Custody: The Details

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

Custody refers to the right to make major decisions about your child/ren. When one parent has sole custody, that parent alone makes all major decisions about the child/ren.  Where the parents have joint custody, the parents are to mutually agree upon major decisions concerning the child/ren. Custody is usually resolved out of court and is detailed in the separation agreement. Custody is different from residence.

Residence refers to the parent the child/ren normally live(s) with.  If the child/ren spend(s) most of their time (more than 60%) with one parent, than that parent has primary residence.  If the child/ren spend(s) at least 40% of their time with each parent, then the parties have shared residence of the child. Usually, the non-resident parent has access to the child/ren, 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/ren or to be a danger to the child/ren (i.e. substance abuse, psychiatric difficulties, history of violence etc…), access can take place at a supervised access center.  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. both parents make joint major decisions about the child/ren, but the child/ren normally just live(s) with one).  In rare cases, one parent can have sole custody, but both parents can have shared parenting (i.e. one parent has sole custody and makes all major decisions themselves, while the child/ren still continue(s) to live 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 their child/ren.

Ideally, parents will be able to decide among themselves as to which custody and residence arrangement best meets the needs of their child/ren while also taking into account the realities of all parties. For parents who are not able to come to a resolution on their own, a parental coordinator/mediator who is able to assist in creating parenting schedules and working out custody details may be a helpful next step. If that is not possible, 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/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 order for the court to determine the best interests of the child, the courts may use the services of agencies such 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.