Determining Child Custody After Separation

In the context of the already-difficult situation surrounding the breakdown of a marriage, the question of which parent gets custody of the children after separation can be a complex and emotionally-charged one.   

In Ontario, custody can be settled by mutual agreement if the parents are able to arrive at a workable solution.  However, if they cannot agree, then it will be determined by way of a court order.   In that case, the essential test involves evaluating the “best interests” of the children.   This requires the court to closely scrutinize the needs and circumstances of the children, and includes consideration of the following:

• The love, affection and emotional ties between the children and each parent;
• The relationship between the children and other family members or individuals who would be involved in their care and upbringing;
• The children’s wishes, if they can be ascertained;
• Who the primary caregiver was during the marriage;
• The length of time that the children have lived in a stable home environment;
• The parents’ respective ability to provide for the children’s needs;
• The plans that are proposed for the children’s care and upbringing; and
• What existing custody arrangements are in place when the application for custody determination is made, and whether those arrangements are permanent and stable.

The court can also consider numerous other family and situational factors such as: each parent’s available time to spend with the children (i.e. in light of work and other obligations); the level of co-operation between the parents; any special needs of the children; and the potential disruption involved in changing the status quo.  Furthermore, in cases where there are two or more children of the marriage, the court will also strive to keep the siblings together, if at all possible.

If necessary, the court may even call for the assistance of the provincial Office of the Children’s Lawyer (OCL), or for the input of a social worker or other professional, in making the “best interests” determination.

In the end, and using all of the available information and criteria, the court will determine which parent is demonstrably more capable of best providing for the children’s health, welfare and education.  This is irrespective of traditional gender roles or the parents’ expectations:   there is no automatic assumption that staying with the mother would be in the children’s best interests, for example.   (Having said that, if she has been the primary care-giver throughout the children’s lives, then a court will usually conclude that it is in their best interests to remain with her.)   Also, past negative behaviour of a parent (such as adultery or drug use) is not determinative unless it is relevant to the parent’s ability to care for the children.   Finally, the fact that one of the spouses is a “good parent” and /or desperately wants custody of the children does necessarily mean he or she will get it; the best interests of the children will always govern.

In light of the complexity of the matter – and especially in contentious custody disputes – it is important for parents to understand their rights in relation to custody.  We suggest you contact our office so we can assist you to evaluate how the factors involved in child custody determinations may apply to your particular circumstances.