What is Shared Custody in a Canada Child Custody Case?

Shared custody is something of an outdated term as of March of 2021. That is because the Divorce Act changed to completely change how courts see and handle the care of minor children during a divorce or common law separation.

Courts no longer speak in terms of custody at all: no shared, not joint, not sole. They speak in terms of decision-making responsibility and parenting time. One party may have majority decision-making responsibility and parenting time in cases where it is warranted, but most judges are aiming to give each parent at least 40% to 50% of both.

That is…shared custody or joint custody as most people understood it. Unless there is a very good reason to do otherwise, this is the arrangement the courts are going to favor. Where it is not possible, either because parents live too far apart, have too many work obligations, or have a history of family violence, the court will still assign a percentage to each parent. They may in some cases vastly reduce the parenting time of one parent and order a third-party supervisor be present at all parenting time appointments.

 

Parenting Orders

Instead of awarding custody, judges now issue parenting orders.

In addition to addressing decision-making responsibility and parenting time, these orders may discuss whether parents may take the children on vacation outside the province, whether parents have to allow contact with third parties such as grandparents, and more.

Most parenting orders even include details on how the children will communicate with one parent while spending time with the other.

Parenting orders should also include provisions for dispute resolution. Disagreements will arise. Whether you agree to seek a mediator or come up with some other arrangement, a good lawyer will insist that these issues get addressed.

 

Decision Making Responsibility

When you have decision-making responsibility you can make decisions about the child’s health care, education, religious education, language spoken at home, and extracurricular activities.

Parenting orders now divide this responsibility in a number of ways.

  • Joint decision-making means that both parents must consult each other and come to decisions together.
  • Sole decision-making responsibility allows one parent to make all the decisions. This arrangement is rare.
  • Divided or parallel decision making says that one parent will be responsible for some decisions while the other parent will make the others. For example, the parent who is paying for a child’s private education might get to make decisions about education and extra-curriculars, whereas the parent who takes the child to the doctor the most might make all the health care decisions.
  • All kinds of decisions may be included in this section of the order. For example, there could even be a section outlining who gets to make decisions about cell phone and social media use, and how those decisions will be made.

The judge will award this capability based upon the best interests of the children, how well you and your ex cooperate with one another, and the special circumstances that may apply. The judge may also consider whether a power imbalance exists and whether there are ongoing safety concerns.

 

Parenting Time

Parenting time includes time spent in the care of a parent. It usually involves time spent living in that parent’s home.

Unless you have supervised parenting time you will have day-to-day decision making capability for the child while they are with you, such as when to go to bed or whether they can watch a particular movie.

Courts favor arrangements that give each parent no less than 41% parenting time, and most favor arrangements that are as close to 50/50 as possible.

If the child spends more than 60% of their time with one parent, that parent is said to have majority parenting time. This does require both parents to live close enough to one another and to be capable enough of communicating with one another to make the arrangement viable.

Parenting time arrangements need to outline exactly how many days each child will spend with each parent. They also need to make provisions for holidays and birthdays, which can be touchy subjects. They should take the child’s activities and social commitments into account. They should also make provisions for pick ups and drop offs.

When one parent has demonstrated they may present a danger to the child due to family violence, drug abuse, or other issues then the parenting order may outline who can supervise visits. We recommend using a paid social worker or a Supervised Access Center rather than appointing a family member or friend, who might be biased towards one parent or the other or resent the obligation.

 

How Parenting Time Impacts Child Support

If one parent has majority parenting time the other parent will pay them child support according to Canada’s federal child support guidelines. Divorce decrees and settlements can modify this amount somewhat, but it may never go below what is outlined in those tables.

Those who have variable income, are self-employed, or are business owners might have quite a bit more negotiation to do. If both parents earn a regular paycheck, calculating child support is a simple matter of the income you make, the province you live in, and the number of children you’re supporting.

Once you have at least 41% parenting time the formula is a little different. Instead, the courts calculate what each parent would have been required to pay had a majority parenting time arrangement existed. The lesser amount is then subtracted from the greater amount, and the higher earning parent pays the lower earning parent the difference.

 

Get Help Today

We have helped thousands of Canadians navigate parenting orders, both under the old custody system and under the new parenting order system. We understand that this is an emotional and scary time for you, and we will do everything in our power to ensure that your relationship with your child is preserved.

We’re known as some of Canada’s toughest family law negotiators and litigators. Our team can make a case for

We help clients in British Columbia, Alberta, Saskatchewan, and Manitoba.

Contact Merchant Law to get started today.

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.