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How is child custody determined?

Child custody is a difficult issue to determine for parents and courts.

Every province has their own specific law regarding child custody and access. While provincial/territorial laws are similar, they are not necessarily the same.

When it comes to child custody and access, it is highly recommended that you consult with a family lawyer, because a lot of legalities are involved in deciding custody and access, especially when there are negative feelings involved between the parties.

Here are some examples of how different provinces/territories deal with child custody and access.

Northwest Territories

In the Northwest Territories, responsibility for the children is frequently set out as part of a separation agreement. The part that deals with the children is called “custody and access agreement.”

If there is no agreement, than it falls to the court to make the decision about custody and access.

When a parent gets custody, he or she has the right to make the major decisions for the child. The parent has physical custody of the child and decides the child’s education, religion and healthcare.

When a parent gets access, he or she has the right to be informed of what is being decided on for the child but has little decision-making ability. Access mostly decides that parent’s right to spend time with the child.

There are two ways custody and access is determined; the first is the parents agree. For instance, here they would agree in a custody and access agreement.

If the parents cannot come to an agreement as to the custody and access when it comes to their child or children, then the court becomes involved and will decide. When custody and access goes to family court, it’s often a costly process.

There are four ways custody can be decided:

  1. Joint Custody: both parents remain in major decision making roles. The child either lives with one parent, or can split his or her time between both parents.
  2. Sole Custody: One parent makes the decisions for the child and the child usually lives with that parent. The other parent usually has access.
  3. Shared Custody: Under this custody arrangement, the child lives with both parents for the same amount of time. It doesn’t need to be exactly the same amount, but close to it.
  4. Split Custody: Split custody occurs where there is more than one child. For example, if there are two children, then one could live with one parent and the other lives with the other parent. Whomever the child lives with has custody and the other has access.

Nova Scotia

In family law, an important concept in all provinces/territories is what is called the “best interests of the child” and is a way in which child custody, and other parenting arrangements, is determined by the courts.

For instance, Nova Scotia has the Maintenance and Custody Act, which was changed in 2013 in order to include a set of factors a judge must consider when making a decision about custody and access.

Some of those factors are:

  • A child’s physical, social, emotional and educational needs;
  • The history of care for the child;
  • The child’s views and preferences;
  • Each parent’s or guardian’s readiness to support the development and preservation of the child’s relationship with the other parent or guardian.


What happens if there is a change in circumstances in the child’s life and you feel the custody and access arrangements have to be changed?

The provinces and territories allow for these changes, if a judge finds the change is warranted.

For example, in Manitoba, you would ask to change the order, which is also called “varying” the custody order.

What happens if one parent decides to live outside the province?

If the child lives in Manitoba than the parent has to apply to a court in in the province, even if that parent doesn’t live there. Though the Divorce Act allows for a custody and access application to be made in the province in which the parent resides, the court usually transfers it to the province in which the child resides.

Read more:

Child Custody and Access Northwest Territories

Information About Custody and Access Nova Scotia

Family Law Booklet Manitoba