Laws For Child Custody in Canada

Laws For Child Custody in Canada

When a couple gets divorced in Canada, what happens to the children? Who takes care of the child’s needs when there is a quarrel between the parents?

Child custody in Canada

Child custody in Canada is a legal procedure which refers to taking the responsibility of children by parents after separation. There are different types of custody with different laws, terms, and conditions.

A divorce is a tough time for the family and the child as well, so it becomes mandatory to seek help in making this crucial decision of deciding the caregiver of the child. In that case, there are different ways to do this process without the involvement of the court as follows:

  • Both parents agree with each other.
  • A mediator is involved.
  • A Divorce lawyer that helps with legal procedures and obligations and laws.
  • Family counselor, therapists, social workers or other such advisers.
  • A Family lawyer for child custody.

It is best when the court is not involved. In Canada, on average, a three-day case can cost at least $60,738 and may extend depending on the case.

Since there are different types of custody, it gives both parents a fair share of advantages, and above all, a child’s wish is taken into consideration after a certain age.

Primary Types of Child Custody in Canada:

  • Physical Custody
  • Legal Custody

Physical Custody:

This is the most common form of child custody. It is when a court decides to give authority to one of the parents to have the child live with them. Here, the parent has authority and responsibility for the child’s entire well-being.

Legal Custody:

Legal custody is when a parent gets to make decisions about the child’s health like where the child should be treated when sick, from where should a child gain their education, which religion the child will follow etc…

Subsets of Physical & Legal Custody:

  • Sole Custody:

Sole custody is when the court grants the complete rights to one single parent for the physical development of the child as well as to make the decisions regarding the child’s education, health, and religion.

  • Joint Custody:

In joint custody, both the parents have rights to take the major decisions of a child; the court can allow this when both the parents can co-operate on parenting matters without creating any dispute. This is also known as joint legal custody.

  • Shared Custody:

Shared custody is also known as joint physical custody. This is where a child gets to live with both the parents equally, spend an equal amount of time or the ratio may vary as per the parents’ requirements. Here, a child can stay with both parents. The decision is taken based on parent-child bonding.

Shared custody is preferable over joint custody when:

  • One parent usually stays away from home for an extended period.
  • When one parent is unable to take care of the child.
  • When one parent is financially unstable.

Split Custody:

Split custody is when there is more than one child of the couple getting divorced. This is where one parent gets some of the children, and the other gets the rest. This decision is also based on the parent-child relationship. Generally, this can affect children’s relationship with their siblings which is why this is not a preferable form of custody.

Parens Patriae Jurisdiction:

Parens Patriae is the Latin word for ‘parent of the nation.’ Canadian courts have this law; this also means that Canadian courts can make decisions on behalf of the children who can’t decide for themselves.

The following factors are considered before giving the custody to the parent as per laws in Canada:

Above all else, the best interest of the child is considered first.

However, apart from that, the court generally makes the decision keeping below points into consideration:

  • Financial stability
  • Parenting abilities
  • The Mental, physical, and emotional health of the parent
  • Relationship between the child and a parent
  • If the parent has good support of grandparents or family elders or close relatives.
  • The daily schedule of each parent.
  • Sibling issues.
  • Considering who was the caregiver before separation.
  • Child’s own wishes.

However, courts try to make decisions in favor of siblings which is why split custody is not considered the best option, yet in some cases, if it is necessary, then the court applies it.

Kerry Fox Law practices all areas of family law, including child custody. If you are looking for the best child custody lawyers in Canada, the lawyers at Kerry Fox Law can empathize and assess the situation to understand your case better and tell you the best solution possible.


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