Divorce Law:
Questions and Answers
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Taking Care of Children
How are decisions made about custody of the children?
Often, deciding
on a parenting arrangement after a marriage is over is not easy. Under the Divorce Act one or both parents may have custody of the children.
If you cannot agree on a parenting arrangement, the divorce law sets out some basic principles that a judge must use when making decisions about children.
- The best interests of the children come first.
- Children should have as much contact as possible with both parents so long as this is in the children's best interests.
- The past behaviour of a parent cannot be taken into consideration by the court unless that behaviour reflects on the person's ability to act as a parent.
When deciding on the best interests of the child, the judge will take into account a number of factors including:
- Care arrangements before the separation. (Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extracurricular activities? Who dealt with the child's school and teachers?)
- The parent-child relationship and bonding.
- Parenting abilities.
- The parents' mental, physical and emotional health.
- The parents' and the child's schedules.
- Support systems (for example, help and involvement from grandparents and other close relatives).
- Sibling issues. Generally, brothers and sisters remain together, but under some circumstances it may be necessary to consider separating them.
- The child's wishes. (There is no magic age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child's wishes as the child matures. An older teenager's wishes will often be decisive.)
What is joint custody?
Sometimes both parents want a divorce, but want to
continue to share their responsibilities as parents equally. Joint custody means that both of you have custody of the children. In other words, you both continue to share in making all the major decisions concerning the children (about discipline, school, major outings, holidays, etc.). If there is joint custody, many different living arrangements are possible. The children may live with each parent about the same amount of time or live mostly with one parent.
What are my responsibilities if I have custody of my children?
If you and your spouse agree that you should have
custody of the children, or if the judge decides that you should have custody,
you have the responsibility for making the major decisions about your
children's upbringing and schooling. The children will usually live with you
most of the time.
In most cases, the other parent still has responsibility to care for the children some of the time. Remember, the law says that there should be as much contact as possible with both parents as is best for the children. However, in serious circumstances, a judge may decide that it is in the children's best interests not to spend time with the other parent.
Children benefit from the opportunity to develop meaningful relationships with both parents and with other extended-family members as long as it is safe and positive to do so.
I don't have custody. Can I still spend time with my children?
Generally, the parent who does not have custody of the
children still has responsibility to spend time with them. If you cannot agree
on these access arrangements, the court will decide for you.
A parent with access:
- usually spends time with the children, such as on a weekday evening, on weekends and on holidays; and
- may ask for information about the children—news about their health and well-being and about how they are doing at school.
As a parent with access responsibilities, you can ask the court to order the other parent to give you advance notice—at least 30 days—if he or she intends to move the children to another home.
Do I have to use the terms “custody” and “access” when deciding upon parenting arrangements?
The Divorce Act uses these terms, but this does not limit the types of parenting arrangements that may be included in written agreements or legal documents. Other words or descriptions can also be used to set out parenting roles and responsibilities.
What alternatives are there to going to court?
Not many parents go to trial about custody. Proceedings
can be expensive and stressful both for you and for the children. You have
choices other than going to court to reach agreements on parenting arrangements.
- You can go to a family mediator. A mediator is generally a person with a legal or social work background who has special training in helping people resolve disputes. A mediator works with both of you and helps you discuss and decide on the arrangements for your children.
- You can meet with a lawyer who will explain your legal rights and obligations and help you negotiate an agreement.
- You can meet with a family therapist, child psychologist, social worker, family doctor or other professional who knows about the effects of separation and divorce on children of different ages.
Many courts now offer parent-education sessions, which present different choices for settling the issues you face when you separate or divorce. These sessions include discussions about the impact of separation and divorce on children.
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