Child Custody Laws in Canada

If you have minor children divorce can bring up a lot of fears. If you’re worried that you might lose your ability to have a relationship with your child as a result of a divorce, then let us put your fears to rest.

Under normal circumstances, it is almost impossible for your child to be taken away from you under Canadian law.

 

Terms

As of March 1, 2021, Canadian courts don’t use the terms “custody” and “access” anymore.

Instead, they speak of decision-making responsibility and parenting time. The way both decision-making power and parenting time are allocated groups together to form what most people commonly think of as custody.

The terms are important to understand because they do a good job of describing what the courts are trying to accomplish. They’re looking for arrangements that will benefit the child, and are attempting, as much as possible, to avoid allowing children to become the focus of a war between the parents.

 

Decision-Making

Decision-making refers to the right to make legal, financial, educational, religious, and medical decision for the child. In most divorce orders, both parents retain equal decision-making power almost no matter what. They are required to make the day-to-day decisions while the child is with them, and they are required to consult with one another before making major decisions.

This means that you’re going to need to plan on keeping the lines of communication with your spouse open, no matter how much you might wish to avoid speaking to this person ever again. The goal is to transition into becoming a co-parent instead of becoming a spouse. Trying to cut the spouse out of the decision-making process or exert subtle pressure on them to back off is rarely conducive to an environment where a child feels free to maintain a good relationship with their parent.

 

Parenting Time

Parenting time refers to the time each parent has with the child. The court favors near 50/50 arrangements where each parent spends no less than 40% of their time with the child.

This isn’t always possible of course, for a variety of reasons. But this is the arrangement the court favors.

Who pays whom child support? If one parent spends less than 40% of their time with the child then they’ll pay child support to the parent who lives with and cares for the child most often. If they spend more than 40% of their time they’re assumed to be caring for the child while they’re together. In those cases, the courts take the amount each parent would be paying, then subtracts the lower income parent’s payment from the higher-earning parent. The higher-earning parent then pays the lower-earning parent the difference, every month.

Resist the urge to accuse your child’s parent of attempting to get more time “just so they can pay less child support.” In general most normal parents want time with their children and most children need time with most parents. It is usually better for your children to see your spouse’s desire to spend time with them in the best possible light. It generally leads to smoother parenting and a faster divorce settlement, too.

Most divorce settlements will require you to put together parenting arrangements that include when the child will sped time with each parent, where they will go to school, where they will be after school, who will be responsible for pick-ups and drop-offs, and more. Your divorce attorney can help you work through these issues and offer a parenting time plan which might work well for your family. You can also download this parenting plan checklist to help you get started.

 

Sole Custody

What if the other parent is abusive, has a substance abuse problem, has moved in with someone questionable, has neglected your child in the past, has no relationship with the child to speak of, or is unwilling or incapable of caring for the child properly?

You’d have to prove your claims to the court’s satisfaction, but there are provisions for these circumstances.

In these cases the innocent spouse would generally be given more parenting time. In some cases the problematic spouse might be relieved of decision-making responsibilities.

Under the new Divorce Act, family violence is any behavior that is “violent, or threatening, or a pattern of coercive and controlling behavior, or behavior that causes a family member to fear for their safety or the safety of another person.”

Most parents will still have some parenting time unless they are incarcerated or truly dangerous to the child. When this happens the court may well order supervised parenting time as an alternative.

 

Supervised Parenting Time

Supervised parenting time means that a trained third-party supervisor from a court-approved agency will stay with your spouse and your child throughout the entire visit. The visit will generally take place either in a public place or in a facility offered by the service.Neither spouse may appoint some other family member as the supervisor, and no spouse may act as the supervisor.

The court will decide who is capable of paying for the service, and who must pay for it. Often, parents are compelled to split the cost of the supervision service.

In addition, the judge may include a non-removal order which forbids parents from taking the child outside of a specific area, which judges include in cases where there is a risk of child abduction.

 

Get Help Today

We’ve helped thousands of Canadians create sensible co-parenting arrangements, defend against accusations of unfit parenting, and alert the court to a spouse’s problematic or dangerous behavior when necessary. We are here to help you protect your children, and to ensure that your relationship with them is as strong as possible.

We help clients in British Columbia, Alberta, Saskatchewan, and Manitoba. We’re known for being some of Canada’s savviest negotiators and toughest litigators.

Contact Merchant Law to get started today. We’re ready to help.

About Donald I.M. Outerbridge

Donald became the Executive Director of Merchant Law Group LLP starting in 1993, nearly 30 years ago. His experience managing law firms at various levels and in multiple provinces across Canada goes back even further to 1981.