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
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
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
- 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
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
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.
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