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Child Custody in Canada
During separation or divorce, child custody is one of the most important decisions concerning the well being of the children. When the Canadian courts are dealing with child custody matters, they determine their decisions based upon one thing: The best interest of the children.
“Custody” means the ability to make decisions. Having custody of your children means you are legally entitled to make important decisions about your children’s lives, including but not limited to: medical treatment, religion, and education.
“Sole custody” is when one parent has custody of the children. The child resides permanently with the parent having custody, and the other parent is often granted access visits.
“Joint custody” is when both parents have custody of the children. Also known as joint legal custody, the courts will award this type of custody to parents who are able to act amicably when making decisions regarding parenting matters.
“Shared custody” is when both parents have joint custody of the children. Also known as “joint physical custody”, both parents spend a minimum of 40% of the time with their children.
“Split custody” is when both parents have custody of some of the children (children are split between both parents accordingly). Younger siblings are rarely split up; yet, older siblings are given the choice to live with different parents.
Determining child custody without going to court:
Trials over custody can be expensive and stressful for everyone. Outlined below are options that are available to parents who wish to reach agreement on parenting arrangements without having to settle in court.
A “Family Mediator” is a person with special training in resolving disputes, typically with a background in legal or social work. They help both parents decide upon the best arrangements for their children.
“Lawyers” are available to help parents understand their legal rights and obligations. By both parents hiring separate lawyers, they will be able to negotiate an out of court parenting agreement. Another option available to parents when hiring a lawyer is the Collaborative Law process. The Collaborative Law process may include Divorce Coaches, Financial Specialists, and Child Specialists who can help guide you through the course of their divorce.
Some “Therapists” are professionals who specialize in the effects of separation and divorce on children. Family therapists, counselors, child psychologists, and social workers use their knowledge to help parents negotiate agreements.
“Parent-Education Sessions” present parents with options regarding separation and divorce, while considering the impact is has on the children.
Decisions concerning child custody can differ depending on the situation. If the parents are able to decide on child custody at the time of separation, then it is critical that their agreements are properly outlined in a legally binding separation agreement. In many situations, parents agree on joint custody of the children, meaning that the custody of the child is awarded to both parties. However, certain times a parent may seek to obtain sole custody of the children. For example, sole custody may be sought by a mother if the father has never been involved in a child’s life. Child custody will be determined by the courts if an amicable agreement cannot be made between the parents.
When making decisions on child custody in Canada, a judge will consider:
- The best interest of the children;
- Parenting abilities of each individual;
- Parent’s mental, physical, emotional health;
- The parent-child relationship and bonding;
- Typical schedules of both the parents and children;
- Each parent’s available support systems (close relatives);
- Sibling issues (siblings are typically kept together, but in some situations it may be necessary to consider separating them);
- Care arrangements (who is the primary caregiver?);
- The children’s wishes (at 12 years old, the children are able to choose which parent they wish to reside with. Their choices are usually respected by the courts.);
- The past behavior of the parents (only if their behavior directly reflects their ability to act as a parent).
It is often recommended that parents settle child custody matters outside the courts. However, in some situations it is necessary to settle in court. If this is the case, the judge will listen carefully to both parent’s arguments and make a ruling based upon the best interest of the children.
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