Custody


Custody is a concept that's used under the federal Divorce Act. As of March 2013, the provincial law (the Family Law Act) no longer uses the word custody. Please see our fact sheet Parenting Apart to see whether federal or provincial law applies to your situation, and what words provincial law uses instead of custody. If you are unmarried and/or applying for orders in Provincial Court, you'll be applying under provincial law. You can also apply for orders in Supreme Court under provincial law.

Also see Making an agreement after you separate and Who can help you reach an agreement? for information about resolving issues without going to court.


If you're applying for divorce and also applying for orders regarding your children under the Divorce Act at the same time, you'll be using the term custody.

Under the Divorce Act, having custody means:

  • the child lives with you at least some of the time, and
  • you have rights and responsibilities to make decisions about the child.

There are different types of custody:

  • Sole custody — One parent has the legal responsibility for caring for and making all decisions about a child. The child lives primarily with that parent.
  • Joint custody — Both parents share the rights and responsibilities for their children. The children can live with both parents or mostly with one parent, and both parents make decisions about the children. A form of joint custody is shared custody, where each parent is responsible for the child or children for at least 40 percent of the time.
  • Split custody — There are at least two children, and one or more of them live with one parent, and one or more of the other children live with the other parent (that is, the children are split up).

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

Custody and child support

Your custody arrangements can affect child support payments. For more information, see our fact sheet on child support (more specifically, the section on the 40 percent principle).

How is custody decided?

Under the Divorce Act, a judge will make decisions about custody based on best interests of the children. A judge will consider the "condition, means, needs and other circumstances of the child" and what would best protect your child's physical, psychological, and emotional safety, security, and well-being. For parents trying to come to an agreement about custody, the best interests of the children should be their primary consideration.

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