Getting Full Custody of Your Child in Canada

Do you feel it’s in the best interests of your child to get full custody? It may be possible, but there are things you’ll have to prove to the court.

In addition, the issue of sole custody is one of the most misunderstood items in Canadian family law. It is vital to understand what you’re asking for, how the courts see it, and whether sole custody will even be possible in your case.

Here’s what you need to know.

 

Custody Terms

The Canadian Divorce Act was revised on March 1, 2021. Courts no longer use the terms “custody” and “access.”

Instead they speak in terms of parenting time and decision-making responsibility. So you won’t hear anyone tell you that you have full custody of your child.

Instead, you might get 100% parenting time and 100% decision-making responsibility. Yet even these arrangements are very rare, reserved for the most egregious forms of family violence. Even where family violence exists, one might expect to see the other parent get something like 10% parenting time, if supervised. You will not have a custody order, but a parenting order.

Understanding these terms helps you understand how courts see custody. It’s about the best interests of the child, who makes decisions for that child, and which parent the child spends time with.

 

Full Custody is Rare

Arrangements that would look like sole custody are extremely rare in Canada. Canadian judges know that most of the time, the best interests of the child require them to have a relationship with both parents.

Most judges favor 50/50 parenting time arrangements or something close to them. They prefer to give both parents equal decision-making responsibility. These are known as shared custody arrangements.

Sole custody would only be awarded in cases where:

 

  • There is a track record of family violence.
  • The parent has a track record of exercising their decision-making responsibility in an irresponsible way.
  • The parent has a substance abuse problem.
  • The parent has an extreme mental health problem which makes it impossible for them to meet the child’s needs.
  • In cases where no family violence exists, the courts also look at the parent’s willingness to foster a relationship between the child and the other parent.
  • When the other parent moves in with a new partner who poses a danger to the child.
  • The other parent has been absent or has failed to be involved with the other child for a long period of time.
  • The other parent has a criminal record.
  • The other parent has social issues which might impact the child in a negative way.

 

You will need to provide strong evidence as to why you should have full decision-making capability and most of the parenting time. For example you would need to to be able to prove that family violence exists. You may be able to prove the parent is an unfit parent who does not provide appropriate guidance, care, or support. For example, if the parent fails to set age-appropriate limits then you might have grounds for having the child most of the time.

In most cases, it will be necessary to bring in a child custody evaluator. These professionals will review health records, school records, and doctors to get a picture of the child’s wellbeing. They’ll interview both parents and conduct home visits. They may interview family members. They will also conduct psychological tests on both the parents or the children.

Even if your child lives with you the majority of the time the other parent is likely to get parenting time, even if that time is supervised time.

If you try to push for custody without a good, child-focused reason you could very well lose it. The courts may see you as being unwilling to foster the child’s relationship with the other parent. As family law attorneys we usually advise against it.

 

Parenting Orders

Your parenting orders might lay out who the child will stay with on what days, who is responsible for taking the child to medical appointments, and who is responsible for taking the child to certain activities.

The judge will often take both parent’s schedules into account while trying to decide who can do the best job of meeting the child’s needs on any given day. They will do this even if parents don’t get along, though we also advise our clients to start thinking of themselves as co-parents. The simple truth is that most Canadians will have to deal with their exes until the children are grown.

The courts also consider the nature and strength of the child’s relationships, not just with both parents, but with grandparents and siblings as well, so that the time gets the ability to nurture those arrangements.

It is usually best ot work out parenting orders yourself, during the divorce settlement negotiation process. You know your schedule and the child’s needs best of all. If your ex is the soccer enthusiast and their schedule allows it then it might be best to have your ex take them to their soccer practice. If you live closest to the child’s school it might make sense for you to take your child to and from school.

Consult with your attorney about what’s realistic, as well as what concerns are driving your desire for sole custody. We will tell you if we think the courts will find your concerns reasonable or relevant.

 

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.