Divorce - Custody - Types of Custody
Note: There is currently a shift in the law away from using terms such as custody and access and a trend towards terms such as parenting. This shift is already present in some provincial laws relating to the separation of unmarried parents such as the Alberta Family Law Act. The federal government currently has new legislation proposed to amend the Divorce Act in the same way. The shift is an attempt to focus more on joint parenting after a separation rather than on issues such as custody and access which are seen to be divisive and adversarial.
What is interim custody?
Interim custody means temporary custody. It can be arranged through a court order (usually made shortly after parents separate and meant to be short-term), lasting only until there can be a full hearing in court if necessary, or until parents can reach an agreement. Parents can also agree about who will have interim custody without a court order and make an agreement.
How does a judge decide interim custody?
A judge makes decisions about custody of children on the basis of a test called "the best interests of the child". This means the judge will consider all of the factors that affect a child's life such as
- the child's relationships with his parents,
- where the child lives and goes to school,
- who he plays with, and
- his extracurricular activities and sports, and
- how all these things could be disrupted as little as possible, as well as
- many other factors.
After considering all of this, the judge makes a decision that she thinks will be in the child's best interests.
Will I have to go to court to get interim custody of my children?
Interim custody is almost always done by an application before a judge using affidavits It is very rare for a judge to hear from witnesses when deciding interim custody. You should be warned, though, that an application for interim custody may not be easy. You, through your lawyer, must give notice to your spouse of your application for interim custody and give your spouse and his or her lawyer a chance to respond. You need to consult carefully with your lawyer before beginning a court application for interim custody, so that you understand all of the possible consequences.
Many lawyers who practise in the area of family law, now practise Collaborative Family Law. These lawyers endeavour to work together for the good of their clients and to try to make the process less adversarial. For more information on how to find a collaborative family lawyer in your area contact your provincial Law Society. The Federation of Law Societies of Canada website contains links to provincial law societies.
What will I have to include in the affidavit for interim custody?
The judge hearing an application for interim custody will want to know
- basic information like the names and ages of the children;
- any special needs or health concerns the children have;
- who has been the primary caregiver for the children up until now;
- the basic facts of the marriage breakdown and why living together is no longer possible;
- your proposal for where you and the children will live;
- childcare or after school care arrangements if necessary;
- financial details about how you and the children will live;
- the children's extracurricular, school, sports and community activities and any special relationships with extended family and how these matters may be least disrupted for the children;
- any other important factors that will have an impact on the best interests of your children.
All of this information will be put by your lawyer into an affidavit and you will be asked to swear that it is true.
When I apply for interim custody, will my spouse file an affidavit too?
If your spouse contests your application for interim custody, then he or she will probably swear an affidavit setting out the facts as he or she sees them. It might contradict many of the things you say in your affidavit. Your spouse's affidavit will also be filed at the courthouse.
What happens if both spouses swear affidavits? How will the judge decide interim custody?
If you both want interim custody of your children and file affidavits, your lawyers will schedule an "examination for discovery". This is a question and answer session held under oath, held in one of the lawyer's offices. A court reporter is present to make a record of everything that is said. The record, called a transcript, can then be referred to by both lawyers and the judge when your case goes to court for a hearing. It will help to clarify the facts involving the family situation and will help the judge decide interim custody.
If we require a court hearing, how does the judge decide custody?
For interim custody, the judge considers "the best interests of the child". This is what a judge thinks about when making an order for custody at the time of a divorce, too. It means that the judge will consider what is best for the children in your particular family, taking into account things like
- where and with whom the children have been living;
- closeness to schools, friends;
- extended family and extracurricular activities;
- special health care needs, if any;
- the children's ages and their relationship with each parent;
- daycare and after school care arrangements; and
- many other factors.
The judge tries to look at the whole picture of the childrens' lives and decide what is best for the children.
How long does an order for interim custody last?
The interim custody order can last anywhere from several weeks to several years. Generally, it will stay in effect until you and your spouse reach a final agreement about custody or until there is a trial before a judge and the judge makes a decision about custody.
What is sole custody?
Sole custody (sometimes called full custody) means that one parent has the legal right to make all major decisions relating to a child without having to discuss the decisions with the other parent. Almost always, a child will live full-time with the parent with sole custody.
Does sole custody mean that the other parent will not see the child?
No. It is important to know that sole custody means that the parent with sole custody makes all of the important decisions about a child's life and well-being but does not control all of the child's time.
The parent without sole custody will almost always be given access to the child (be allowed to spend time with the child). This access can be very generous, to the point where the non-custodial parent spends almost as much time with the child as the custodial parent.
What is joint custody?
Joint custody means that both parents are equally responsible for all major decisions about their children and must agree about those decisions.
What does the term "major decision" mean?
A major decision means deciding matters like
- where a child will go to school;
- what religion the child will follow;
- health care decisions, like braces on teeth or surgery;
- extracurricular activities like sports programmes or music lessons; and
- daycare or after school care arrangements.
My spouse and I seem to be fighting all the time. How will we agree about major decisions for the kids?
Joint custody has been a very popular option for a number of years, especially in the United States, but Canadian judges are very aware of this problem. In Canada, most judges will not order joint custody if one parent doesn't want it. If you and your spouse are disagreeing about most things, and communication and cooperation are difficult, then a judge is unlikely to order joint custody.
How do we arrange joint custody?
If both spouses agree, then joint custody can be put in an agreement between them or it can be put in a court order signed by a judge.The judge must be convinced that joint custody is what both parents want and that it will work for the family.
Involve and Consult Custody
What is "involve and consult" custody?
Involve and consult custody agreements are made between the spouses, not by court order. It is a compromise solution that falls between sole custody and joint custody. In this arrangement, the parent who has the children living with him or her promises to talk to the other parent about all major decisions and try to reach an agreement. However, if an agreement can't be reached, then one parent has the right to make the decision.
What is the advantage of involve and consult custody?
This kind of custody allows both parents to feel that they have say and control over major decisions involving their children, but prevents a deadlock from developing because one parent ultimately has the power to make decisions.
What is split custody?
Split custody means that one parent has custody of one or more of the children, and the other parent has custody of the other children. For example, the mother might have custody of a daughter and the father might have custody of a son.
This type of custody is quite rare. It might be ordered by a judge or agreed upon by the parents.
Why would children be split up?
Split custody might happen because
- one parent does not feel capable of caring for all of the children in the family;
- there are large age differences among the children;
- the children are old enough to be consulted and have indicated very strong preferences about who they live with; or
- the children themselves are experiencing severe difficulties in getting along with one another.
Why is split custody rare?
Split custody is rare because most judges, parents, and family counsellors believe that separation and divorce are hard enough on children without splitting up the family unit further by separating brothers and sisters from each other in this way.
Shared custody is a term that is used in the Federal Child Support Guidelines that came into effect on May 1, 1997. It is a custody situation where a child spends at least 40% of the time with the parent he or she doesn't live with. This parent will have access (have the child stay with him or her) at least this much of the time.
This kind of custody arrangement affects how child support is calculated. For more information, see the Department of Justice Canada website.