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Child custody — FAQ

Divorce or separation is often hardest on the children, which is why Canada’s Divorce Act is structured with the “best interests of the child” in mind. This sentiment needs to be at the heart of custody discussions between spouses when a marriage fails.

Whether the breakup is amicable or not, both parents will have to work out a legal agreement on where their children will live and how they will be raised post divorce.

Following are answers to some of the most frequently asked questions about custody-related matters:

What does “best interests of the child” mean?

Section 16(8) of the Divorce Act defines “best interests” as a general set of criteria “determined by reference to the condition, means, needs and other circumstances of the child.” Those considerations could include the child’s relationship with each parent, their emotional well being, each parent’s ability to care for the child, any of the child’s stated wishes, the stability of the child’s current living arrangements, the strength of each parent’s proposed plan and the desire to avoid separating siblings.

What is legal custody?

The term “custody” refers to under which roof a child resides and who makes decisions regarding the child’s welfare. As opposed to “physical” custody, which is where the child lives, “legal” custody refers to who makes the decisions on issues involving the child. These are not decisions on mundane day-to-day matters such as bedtimes, meals, chores, etc., but on major concerns like religious upbringing, medical care and education. In the case of sole custody, it’s likely that one parent is making all the decisions as they have been granted both physical and legal custody.

Does the mother automatically get custody?

No, but mothers are often viewed by the courts as the “primary caregiver” and as such judges are inclined to maintain that parent’s role in order to limit further upheaval to the child emotionally or physically.

Does alcoholism/drug addiction automatically preclude a parent from getting custody or access?

Not necessarily. Unless the parent(s) drug or alcohol use interferes with their ability to look after their child, it should not automatically prelude them from gaining custody. However it will speak to a person’s character and stability and therefore will factor into the court’s decision on what is in the best interests of the child.

In the 2011 Ontario court decision of Booth v. Ray, the judge ultimately awarded temporary custody to the grandparents of a 7-year-old boy whose father was a violent alcoholic and mother was a regular drug user.

Are shared and joint custody the same thing?

No. Shared custody is when the child splits his or her time living at the homes of both parents, typically in a one-week-on-one-week-off situation. In this scenario the child must live with one of the parents at least 40 percent of the time. In a joint custody situation, the child could live with one parent more than 60 percent of the time, but both parents make major decisions about the child together.

What are the different types of custody?

  • Sole: When one parent is awarded custody and the child resides permanently with them and the other parent has visitation rights.
  • Joint: Both parents have legal custody, which means they participate equally in major decisions regarding the child’s health, religious upbringing and education. This does not mean the child spends an equal amount of time living with each parent.
  • Shared: Both parents have joint physical custody and the child spends at least 40 percent of the time living with each parent.
  • Split: In families with multiple children, custody of the kids is split between both parents. So if the parents have a boy and a girl, one of the siblings would live with the mother and the other would be awarded to the father. This scenario is more frequent with older siblings, who have the right to choose where they want to live.

What if my child won’t go for their access visit?

Outside of legitimate safety concerns, custodial parents must make every reasonable attempt to make sure that the child spends time with their other parent. Often the child refuses to go out of loyalty or concern for the parent they are leaving. According to the Family Law Nova Scotia website, parents should “let the child know that you will be fine without them in your care” and in all other matters, remain “positive with the child about the time they are going to spend with the other parent.”

My ex is not making his paying child support payments, do I still have to let him see our child?

Yes. This is not like a landlord evicting a tenant for non-payment of rent. The courts always consider what is in the child’s best interests and that is enjoying contact with both parents. If you have made spousal support arrangements through the courts and they are not being fulfilled, you can have them legally enforced. You cannot, however, use your child as a pawn to force payment. Likewise, you cannot refuse make support payments if you are being denied visitation.

What can I do if my former spouse will not return my child after a visit?

If you are unable to contact or come to an agreement with the other parent on returning your child, you can have your jurisdictional court issue an enforcement order that gives police the right to seize the child and return him or her to you. In order to do this you must first have a court order guaranteeing custody, or clearly defining visitation. If you don’t have such an order you can apply for one.

Can the custody arrangements be changed after the fact?

Yes. The terms of your divorce, or separation, agreement can be amended in the event there is a significant change in circumstances of either parent that would affect the child’s best interests. A popular scenario is when a custodial parent moves to another province for work. Both parents usually have to approve the change, but in the event one party refuses, the other parent can apply for “a motion to change” whereby they ask the court to change the order to reflect the new circumstances.

If I have sole custody can I move to another country?

Yes, but you first need to inform the other parent of your plans in writing 60 days before you intend to move. If the other parent objects to the move, they have 30 days to file a court application to contest the move. If they do not file an application within that timeframe, you are free to proceed with the move. If you have shared custody and one of the parents object, then the parent that wants to move must show the court that the move is being made in good faith and is in the child’s best interests.


Read more:

Department of Justice: http://www.justice.gc.ca/eng/fl-df/parent/index.html

Family Law Nova Scotia: http://www.nsfamilylaw.ca/custody-access/information-about-custody-and-access