Custody

Note: Mouse over any of the terms in green type to see a definition.

If you are the parent who lives with the children most of the time (for instance, after a separation), you are said to have custody. Under the law, custody can have two meanings. It can refer to:

  • where and with whom a child lives, or
  • where a child lives and the rights and responsibilities of a parent to the child in his or her care.

There are different types of custody:

  • Sole custody occurs when a child lives primarily with one parent.
  • Joint custody occurs when a child either lives with both parents equally or lives mostly with one parent (the child's primary residence) but the parents have agreed to share equally the rights and responsibilities for that child. This involves a high level of communication and shared decision-making between the parents.

Custody can also be described in other terms (see also Custody and the child support guidelines), but sole custody and joint custody are the terms used most often.

Note: Because custody arrangements are as flexible as the parents who make them, you need to define for yourself what you want if you are seeking joint custody. Be sure you and the other parent agree on what joint custody means.

The courts may make orders about custody under both the Divorce Act and the Family Relations Act. If the parents were never married, the court may only make orders under the Family Relations Act.

Under section 16 of the Divorce Act, the law requires that the best interests of the child be determined by considering the "condition, means, needs and other circumstances of the child." Custody under the Divorce Act means which parent the child will live with and all rights and responsibilities for the child. Under the Family Relations Act, these rights and responsibilities are described separately as guardianship.

Under section 24 of the Family Relations Act, the court, in making a custody order, must give "paramount consideration to the best interests of the child" and consider the following:

  • The health and emotional well-being of the child, including any special needs for care and treatment
  • If appropriate, the views of the child
  • The love, affection, and similar ties that exist between the child and other people
  • The education and training of the child
  • The capacity of each person to whom guardianship, custody, or access rights and duties may be granted to exercise these rights and duties adequately

Custody and the child support guidelines

Although custody orders usually provide for sole or joint custody, actual arrangements may be more complicated than those terms suggest. As a result, some more descriptive terms for custody arrangements have been developed to help determine how the child support guidelines should be applied. Two important descriptive terms are split custody and shared custody; they are included in the child support guidelines themselves.

Split custody refers to a situation where one or more of the children live with one parent, and one or more of the children live with the other parent (that is, the children are split up). The order itself may give sole custody of some of the children to each parent, or the order may say the parents have joint custody. However, in determining the amount of child support to be paid and by whom, the court needs to know where the children actually live and with whom.

Shared custody refers to a situation where one or more children are physically with (for more than 40 percent of the time) the parent who would normally pay the full amount of basic child support. Because they live with that parent so much of the time, custody is actually shared according to the child support guidelines. In such a case, for example, there might be a sole custody order in favour of the mother, but the father has access to the child 45 percent of the time. Or the order might state that there is joint custody, and the child might live with each parent for 50 percent of the year. No matter what the order says, such a situation is described as "shared custody" under the child support guidelines.

The responsibility for making major decisions for children about such things as what kind of education, health care, or religious training they will receive, and how to manage anything the children may own, such as property or money.
A document that records the decision of a judge/master and is entered at the court registry after the judge/master makes his or her decision.
Generally means the time children spend with the parent they do not usually live with. However, access is not limited to the parent who does not have custody — any person can apply for access to a child (including grandparents, aunts and uncles, and other relatives).
Money paid by one party to the other party as financial support. Support can be paid for a former spouse or for any or all children.

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