How does child custody in Canada work?

Posted by Nick Niesen on October 27th, 2010

In the confusion of divorce, most parents never consider the issue of child custody beforehand. Often communication between the spouses has broken down and both parents presume their assumptions about child custody to be accepted by the other parent. Often this is not the case. As a result, many divorcing parents find themselves confused and surprised by the prospect of child custody issues in divorce.

The greatest misconception is that the primary caretaker is the presumed de-facto custodial parent. So, most parents who take the lead role in providing for the child in marriage simply assume that the law will recognize this role by giving him or her primary custody after divorce. Historical care, however, does not automatically guarantee child custody. If you have filed for a divorce and your ex has gone ahead and obtained a legal order to take custody of your child ? the child can be legally taken away from you despite any caretaking role you may have had in your child?s life. As a result, unprepared divorcing parents often find themselves in a position in which they don?t have the legal right to make any important decisions regarding their child ? on issues such as education, religion and medical treatment.

Courts Decide Custody

According to Canadian law, until courts decide otherwise, both parents have equal rights of custody to any and all children. Cutting through the legalese, what that means is: get the courts to grant you custody ? only then you are safe against any counter motions by your spouse. In order to navigate the courts, however, you need to educate yourself about Canadian custody battles to ensure that you, and not your ex, manage to convince the courts to give custody of your child to you.

A Child?s Best Interest

In Canada, as in many other countries, courts focus on only one issue in child custody cases: they decide what in their view would be in the child?s best interests and grant custody accordingly. This is a somewhat vague standard as you may imagine, and as a consequence it will serve you well to understand the underlying factors which will influence a court in reaching a decision regarding the best interest of a child.

-each parent's ability to provide for the child's needs both financially and emotionally,

-the relationship each parent has with the child,

-your child's wishes, if he or she is of an age of maturity to convey to the court their wishes,

-if you have more than one child, the court normally prefers to keep them together,

-the court will try to minimize the disruption of the child's life (the status quo),

-who the primary caregiver of the child was during the marriage,

-time available to spend with the children (working hours, out of town trips),

-one parent's interference with the other parent's relationship with the children,

-any special needs of the child.

Common Presumptions of the Courts

The portrait painted above indicates that there are a great many factors, which a court will use to determine the best interest of a child. That said, however, there are three cardinal rules that generally prevail for most courts:

1)Stay at home mother: A devoted stay at home mom, almost always gains custody of the child over a working husband. This presumption is based upon the fact that, especially for young children, the court likes to place children in an environment where the parent is certain to be around often.

2)Established status quo: If either party has, for all practical purposes, already taken control of the child after separation but before any official declaration by the courts, the judge will typically interpret the current living arrangement as the default arrangement and all things being equal will uphold it.

3)Primary caregiver: If you can establish that you have been the primary care giver for a child then the law will typically presume that you are best situated to care for the child in the future and as a result grant you custody.