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If you and your spouse are parents, children related issues of custody and access will likely be the most difficult ones to resolve. However, more than 98% of custody issues that go to court are settled by the parents before trial, often with the help of various professionals like the lawyers, counselors, mediators, or a representative of the Office of the Children’s Lawyer. If you and your spouse keep your focus on what’s in the best interests of the Children, you’ll increase your chances of resolving these issues without a trial and with minimal disruption in the children’s lives.

What is Custody?

The term “custody” means control of the decision-making for issues related to the children, such as the care, upbringing, education, and welfare of the children. With whom a child lives is only one component of such decisions. Other components include health care, travel, religion, education, as well as day-to-day decisions. Types of overall custody can be viewed as being along a spectrum, with sole custody to one parent being at one end and sole custody to the other parent at the other end. This spectrum can apply to each component or category of decisions related to the children. The following are common types of overall custody arrangements:

  1. Sole Custody. In this situation, one parent is entrusted with sole decision-making related to the children. The children may reside with one or both parents, but the one parent makes the ultimate decisions and can exclude the other parent from the process (unless there is a requirement to consult the other parent before deciding).
  2. Joint Custody. This is the type of custody that exists prior to separation and that continues until there is a court Order or agreement of you and your spouse. Typically the children live primarily with one parent, but both parents have equal decision-making powers about the children’s issues. There is often a specified mechanism for resolving any disagreements that may arise on these issues. Courts rarely order joint custody in high conflict situations or when one of the parents strongly objects to it.
  3. Shared Custody. This refers to the children’s residence and occurs when the children live with each parent at least 40% of the time. Shared custody usually exists only when there is a joint custody situation and when the parents’ homes are relatively close to one another (e.g. in the same school catchment, near the same friends of the children, etc.). The children’s residence may change weekly or during each week subject to what makes the most sense. Shared custody can substantially affect a parent’s rights or obligations related to Child Support.
  4. Split Custody. These situations involve more than one child, where each parent has custody (or residence) of one or more of the children. There is a general tendency to keep siblings together, subject to the children’s best interests.Your entitlement to custody may be suspended until a separation agreement or court orders otherwise if your spouse and child live separate and apart from you with your consent, implied consent, or acquiescence (see section 20(4) of the Children’s Law Reform Act).
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How is Custody Determined?

Many parents are able to resolve custody issues between themselves. If the issue of custody is left for a judge to decide, the judge will decide the issue based on what is in the best interests of the children. Although the “best interests of the child” test has been criticized as being too vague, it is still employed as a primary guideline in determining custody and access issues.

Best Interests Section 24(2) of the Children’s Law Reform Actspecifically legislates that the court shall consider all of the children’s needs and circumstances including the following:

  • the love, affection and emotional ties between the child and,
  • each person entitled to or claiming custody of or access to the child,
  • other members of the child’s family who reside with the child, and
  • persons involved in the child’s care and upbringing;
  • the child’s views and preferences, if they can be reasonably ascertained;
  • the length of time the child has lived in a stable home environment;
  • the ability and willingness of each person applying for custody of the child to provide the child with guidance and
  • education, the necessaries of life and any special needs of the child;
  • any plans proposed for the child’s care and upbringing;
  • the permanence and stability of the family unit with which it is proposed that the child will live;
  • the ability of each person applying for custody of or access to the child to act as a parent; and
  • the relationship by blood or through an adoption order between the child and each person who is a party to the application.
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