Child custody can be a loaded subject, so let’s start with the basics.
Because there is more than one form of custody, parents sometimes get confused about what the different terms really mean.
In this article, we aim to clear up some of that confusion and help you understand the different variations of child custody that a court can order when making a ruling as part of a Family Law proceeding.
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Here’s what we will cover:
- The basic concept of “custody”
- Sole custody
- Joint custody
- Shared custody
The meaning of some of these terms is expressly defined by legislation (primarily the federal Divorce Act and the Ontario Family Law Act), but the other ones are not subject to any strict definition; they are simply the terms commonly-used by courts, lawyers and parents to describe specific custody arrangements (no wonder there is so much confusion).
What is “custody”?
Many people assume that child custody deals with how much time a parent has with a child. However, this is incorrect.
Under Canadian law, custody actually refers to who has decision-making responsibility over matters that impact the child. These can include major items such as the child’s education, health care, religious upbringing, and extracurricular activities, as well as day-to-day concerns such as the child’s dietary and sleep needs, schooling and social activities.
The different forms of child custody arrangements simply demarcate the decision-making power that each parent has, in connection with the child they have together.
When custody cases are brought to court, a custody order will be made as part of a Family law proceeding between the parents. That order will set out whether one or both parents are responsible for making decisions for the child, and will also address parenting time, also known as access rights, with the child for a non-custodial parent if this is relevant.
It is possible to change a custody arrangement if it is not meeting the needs of the child or parents by way of a subsequent order. However, this change will not be made on a whim. A judge will not make a change to custody simply because you do not like the arrangement. However, if one of you is moving to another province, then a change may be granted.
What are the different types of custody?
Custody arrangements are always tailored to the child’s needs and best interests. Therefore, your custody arrangement will reflect your family’s unique circumstances and requirements.
Sole custody = One parent makes all major decisions
Under a sole custody arrangement, one parent makes all major decisions that affect the child. The child may live primarily with the parent who has “sole custody,” but that’s not always the case.
Just because a parent does not have custody does not mean he or she won’t have parenting time (access) with the child.
This arrangement works best in situations where one of the parents is better-suited to making both the major and day-to-day decisions that will preserve the child’s best interests.
Joint custody = Both parents make major decisions
In a joint custody scenario, both parents make major decisions that affect their child. One parent is not entitled to make a final decision without the agreement of the other. Living arrangements are a secondary consideration here.
This arrangement works best for separated and divorced parents who can still communicate well, and who can still make decisions collaboratively when it comes to their child.
Even co-parents who get along well may on occasion, be unable to reach a decision together. To prevent ongoing arguments, a court may order that one of the parents is recognized as the final decision-maker in the event that the parents cannot come to an agreement on an issue regarding the child’s best interests.
Shared custody = Both parents make major decisions and spend time caring for the child
The notion of shared custody can be one of the most confusing. It is often mistaken for joint custody, but they are not the same thing. Shared custody is actually a defined concept under the federal Child Support Guidelines (CSG) referring to the financial obligations by a child’s parents, not who makes the decisions.
Shared custody describes a defined scenario in which each parent spends at least 40 per cent of the time with the child over the course of a year, whether achieved through physical custody, or through access rights. Both parents have financial responsibilities, and both make all major decisions together, even though the child may be living mainly with one parent.
How do courts decide which arrangement is best for us?
When making a custody order, courts are always at liberty – and indeed, are mandated by law – to choose an arrangement that best serves the needs of the child, while still taking into account the needs and abilities of the parents.
This involves considering a variety of factors; among the main ones is the parents’ ability to communicate and work well together on making the daily and long-term decisions affecting their child.
As previously stated, each family has a unique composition, and all of its members have different personalities, needs, and strengths. This means that each court-ordered custody scenario will have a customized, uniquely-balanced outcome and resolution.