Family Law
Child Custody Issues
Family Law
Child Custody Lawyer
In 2021, the Canadian government updated the Divorce Act, which included removing terms related to ‘child custody’ and ‘child access’ and replacing them with decision-making responsibility and parenting time. The updated Act focuses on arriving at a parenting arrangement that will best suit the child’s interests and leaving all other aspects of the dispute between the parents out of the equation. The Act envisages that the ideal parenting arrangement will be one where the child can maintain a healthy relationship with both parents even after the divorce. With the help of a child custody lawyer, you will be able to make sense of the legal framework and safeguard the interests of your child.
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What is a parenting plan?
It is a written agreement between the parents on how the children will be raised after the divorce or separation. In an uncontested divorce, it is possible for the couple to come to an understanding regarding the parenting plan through negotiations with their divorce lawyers. However, one of the main points of contention in a contested divorce will be the parenting arrangement of the children involved. Who will the children stay with, how much will each parent have access to them, what are the plans for the children while on parenting time, where will they sleep, go to school and who will have the decision-making authority regarding various aspects of their lives are some of the matters to be resolved. If these are not resolved by mediation through their divorce lawyers, the court will have to make the decision in the best interests of the child. If so, it is best to have a child custody lawyer by your side fighting for you and your child’s best interests.
How is the parenting plan finalized in a divorce or separation?
The Divorce Act and the relevant laws at the provincial and territorial levels will ultimately guide the court’s decision in finalizing the parenting arrangement of the children. These laws are designed with the child’s best interests in mind. The court will take the following factors into consideration while making the final decision:
- The needs of the children.
- Stability: If possible, it is better not to move the child from the current school or residence.
- Special Needs: If there are any special medical or educational requirements of the child, these will be given priority.
- The relationship of the child with the parents and other family members, like siblings and grandparents.
- Each parent’s readiness to support the other parent’s relationship with the child.
- The arrangements in place for childcare during and after the separation.
- The child’s preference.
- The ability of the parents to take care of the children.
- The cooperation between the parents on important issues affecting the child’s religious, linguistic, and cultural identity.
Decision-making responsibility
One key factor to decide in the parenting arrangement is how the decision-making responsibility over the child’s well-being is to be allocated. This typically includes decisions regarding the child’s healthcare, education, extracurricular activities, and the cultural, linguistic, and religious aspects of the child’s life.
This can be done in the following ways:
- Joint decision-making responsibility: Both parents consult and make decisions together on all important matters concerning the child.
- Sole decision-making responsibility: One parent, generally the one who the child is staying with, will make the decisions.
- Divided decision-making responsibility: Some decisions are relegated to one parent while the others are retained by the other parent.
Ideally, both parents should be actively involved in the child’s life in a decision-making role. If the parents can get along well, joint decision-making will be the right option. However, if they are not able to cooperate with each other, it is best to avoid disputes by relegating their decision-making responsibilities to separate areas. There too, it is better to have some arrangements in place to figure out how to resolve issues whenever there is an overlap.
Parenting time
Parenting time, as the name indicates, refers to the time the child is in the care of either of the parents. The child need not be physically with that parent during this whole duration. For example, if the child is at school when he is under the care of one parent, this time is counted as parenting time. The parenting time can be allocated between the parents in the following manner:
Shared parenting time:
As per the Child Support Guidelines, the child spends at least 40% of the time with each parent in a shared parenting time arrangement. This ensures that the child maintains a healthy relationship with both parents.
Split parenting time:
Split parenting time refers to an arrangement where multiple children are involved, and the parenting time is split among the children. Each of the children will predominantly live with one of the parents for reasons of stability and convenience. For example, the younger school-going child might live with the mother located near the school, while the older college-going child might live with the father.
Supervised parenting time:
Supervised parenting time becomes necessary if there are any safety concerns regarding the time the child will be spending with one of the parents. This will be a concern if that parent has a history of substance abuse or violent behaviour. The parents can mutually agree to such an arrangement, or this might be the arrangement ordered by the court. The person supervising can be:
- A relative or family friend both parents agreed upon.
- A paid social worker or other qualified professional.
- If the visit is happening at the government-funded Supervised Access Centre, then the professional staff there or their volunteer will supervise.
No parenting time:
In rare cases of violence or abuse, the court will issue orders in the best interests of the child and deny parenting time completely to that parent.
How can a child custody lawyer help you?
When the parents are not on the same page concerning the parenting arrangements of the child, it is best to have an experienced child custody lawyer on your side advocating for your rights while keeping the child’s best interests in mind. Your lawyer will explain to you the legal aspects of the Divorce Act that governs the decision-making responsibility and parenting time and ensure that the agreement aligns with the federal and provincial laws. A child custody lawyer can also help you in negotiating the agreement with the other parent and come to a negotiated settlement on where the child will live, vacation arrangements with the parents, parenting schedules, and decision-making authority.
If negotiations fail to resolve the matter, the child custody lawyer will represent you in court and fight for your parental rights. If successful, the court will then issue a Parenting Order in your favour. However, if the other parent refuses to cooperate, your lawyer can again help you with the enforcement of the order through various legal means. Also, when circumstances change, your lawyer can help you modify the agreement through negotiations or approach the court again for any modifications to the existing parenting order.
We can Help
If you are struggling to finalize the parenting arrangement for your children, our experienced child custody lawyers can help ensure that your family’s rights are protected and your children’s well-being is safeguarded. Contact our legal team today for a consultation.
Frequently Asked Questions
What is a Parenting Order?
A parenting order clearly sets out the child’s decision-making responsibility and parenting time as decided by the court. This is a legally enforceable document. If you cannot agree on the parenting plan through negotiation, it is best to approach the court through a child custody lawyer to get a parenting order in your favour.
What is a contact order?
A person who is not the child’s parent, say, one of the grandparents, may approach the court asking for time to be spent with the child. As mentioned above, this does not mean that the child will be physically present with them throughout the duration. The child might be attending the school when they are legally under their care.
Can one parent relocate with the child without the consent of the other parent?
No. Any move that changes the existing parenting arrangement without a court order or consent of the other parent is not allowed. If necessary, you can approach the court to modify the existing arrangement. Please note that the court will take the decision based purely on what is best for the child.
