Child Custody: Does my Job Matter?

As a parent, you are responsible for caring for your child’s needs.  This is a significant obligation, and it can lead to a work-life balance that might not be ideal. You might be working full-time, when you’d really prefer to be a stay-at-home parent.  Or you may be working very long hours – perhaps at a job you don’t particularly enjoy.  All in the worthy pursuit of making enough money to provide suitable care and surroundings for your child.

If you are separated or divorced from the child’s other parent, this financial burden may be even greater.  The choices may be even more narrow.  But this leads to a related question: 

How does the nature of your employment affect a court’s decision on parenting time and decision-making responsibility (formerly known as “custody”)?  Are there jobs or work patterns that may help or hurt your chances?

Child Custody Laws in Canada:

In Canada, the Family Courts are required to consider numerous factors when deciding how much parenting time each parent gets with a child. These are set out in the federal Divorce Act, and in the Ontario Family Law Act, in nearly-identical wording. Those Acts both provide that the court must – above all – keep in mind the best interests of the children. On top of that, there are many itemized aspects the court must also consider. These include: 1) the child’s need for stability, and 2) the “ability and willingness of each person, in respect of whom the order would apply, to care for and meet the needs of the child”.

Both of those factors can be tied to your employment, at least in part. If you have a high-paying job, you may be able to offer a good standard of living. However, many lucrative jobs are also high-pressure, with long hours. If you regularly work 12-hour days and weekends, or must travel for work often, then a court will rightly conclude that you may not have much time to spend with your child.
Even leaving aside the amount of money you make, your ability to meet a child’s emotional needs and provide stability is also influenced by the type of job that you do, and by your work schedule. Courts will examine your work-life balance when allocating parenting time.

So what does this look like in the real world? What are the principles at play?

Complementary Scheduling:

First of all, having an opposite schedule to the other parent might work in your favour. For example, in a case calledGionet v. Gionet[1] the court was faced with separated parents who both did shift-work, and who both wanted custody of their 20-month-old child. Given their jobs, neither of them could really offer a stable environment for her. So the court struck a compromise: When the mother was at work, or was sleeping after her night shift, the father should have a chance to be with the child (if he was not working himself). This was better than hiring a babysitter, the court said. Since the child was very young, the mother would have custody, but was ordered to keep the father advised of her work schedule. Conversely, the father was encouraged to arrange his own schedule so that his free time would coincide with the mother’s shifts or sleep. The court also directed them both to communicate about their work schedules, and to work out a reasonable access arrangement accordingly.

Making the Best of an Unusual Situation:

Next, the fact that you have a job that is not ideal for raising children does not mean that your parenting time will necessarily be curbed. In a divorce case called Roode v. Roode[2] the father had been a trucker by occupation the entire time he dated and was married to the mother. The nature of his job meant he was out of the province for long periods of time. With this in mind, he decided not to ask for child custody, and instead was content with having only access. He saw them anytime he was near their home, and called weekly when he was not. This went on for four years.

After the mother had an incident, the court agreed to transfer custody to the father, even though he was still currently a trucker and on the road often for his job. He had made arrangements for them to live with relatives while he was on the road, and had proven his dedication to them in the past. As unusual as it was, the arrangement was in the children’s best interests.

Identifying Child Caretakers:

It’s not merely the hours you keep that matter. It’s also about who will care for your child while you are working. In Bristow v. Bristow[3] the parents’ respective work arrangements gave the court two different child custody options to choose from. If the wife had custody, then the 16-month-old child’s caretakers would consist of her and a babysitter. If the husband had custody, then the main caretakers would be him his mother, and the same babysitter. While the court was confident that both the husband and the paternal grandmother was qualified to take care of the child, the grandmother was not currently well-acquainted with the child. Since father was often away from home on business – for what the court considered “substantial periods as expressed in the terms of his sixteen month old child” – the court ruled that it would be unfair to the child if its life was not the subject of more constant ongoing daily care. It granted the mother custody.

Making Special Arrangements:

Finally, the nature of your job, and the hours you keep, may not hurt your chances at optimizing parenting time, provided you make appropriate arrangements for your child. In a case called M. v. M.[4]the mother wanted permanent custody of the children, but the father objected on the basis that she worked as “cabaret hostess” at night. On nights that she was working, she arranged for babysitters who usually stayed overnight.

The father complained that her line of work made it impossible for her to care properly for the children. The court said it could not give the father’s objections any “serious consideration”, since it was he who had arranged this particular employment for the mother in the first place. Plus, the children had been doing well in the mother’s care so far.

As you can see, your employment and work hours can have an impact on your right to parenting time and decision-making responsibility, but it’s not always a bad thing. For tailored advice on your own situation, call our offices at 1-888-978-1178.

[1] 1988 CarswellNB 171, [1988] W.D.F.L. 1206, [1988] A.N.B. No. 313, [1988] N.B.J. No. 313.

[2] 1985 CarswellSask 339, [1986] W.D.F.L. 050, 35 A.C.W.S. (2d) 411, 42 Sask. R. 307.

[3] 1985 CarswellOnt 1746, [1985] W.D.F.L. 1148, 31 A.C.W.S. (2d) 109.

[4] 1972 CarswellNB 23, 16 R.F.L. 291, 7 N.B.R. (2d) 491.