Free information about child custody, access and support for divorce in Canada

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Free information about Child custody, support and access in Canada

 

How are decisions made about custody of the children?

Often, deciding who should have responsibility for children after a marriage is over is not easy. Sometimes both parents want custody of the children. If you can't decide who will take care of the children, the divorce law sets out some basic principles that a judge must use when making decisions about children.

  • The best interests of the children come first.

  • Children should have as much contact as possible with both parents so long as this is in the children's best interests.
  • The past behaviour of a parent cannot be taken into consideration by the court unless that behaviour reflects on the person's ability to act as a parent.

When deciding on the best interests of the child, the judge will take into account a number of factors:

  • Care arrangements before the separation. (Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extracurricular activities? Who dealt with the child's school and teachers?)
  • The parent-child relationship and bonding.
  • Parenting abilities.
  • The parents' mental, physical and emotional health.
  • The parents' and the child's schedules.
  • Support systems (for example, help and involvement from grandparents and other close relatives).
  • Sibling issues. Generally, brothers and sisters should remain together, but under some circumstances it may be necessary to consider separating them.
  • The child's wishes. (There is no magic age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child's wishes as the child matures. An older teenager's wishes will often be decisive.)

 
What are my responsibilities if I have custody of my children?

If you and your spouse agree that you should have custody of the children, or if the judge decides that you should have custody, you have the responsibility for making the major decisions about your children's upbringing and schooling. The children will usually live with you.

In most cases, the other parent still has a right to be with the children some of the time. Remember, the law says that there should be as much contact as possible with both parents as is best for the children. However, in serious circumstances, a judge may decide that it is in the children's best interests not to spend time with the other parent.

Children benefit from the opportunity to develop meaningful relationships with both parents and with other extended-family members as long as it is safe and positive to do so.
 

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I don't have custody. Can I still spend time with my children?

Generally, the parent who does not have custody of the children has a right to spend time with them. If you cannot agree on these access arrangements, the court will decide for you.
A parent with access usually has rights to:

  • spend time with the children, such as on a weekday evening, on weekends and on holidays; and

  • receive information about the children—news about their health and well-being and about how they are doing at school. As a parent with access rights, you can ask the court to order the other parent to give you advance notice—at least 30 days-if he or she intends to move the children to another home.

But your right to be with your children is not carved in stone. You can lose your access rights or they can be limited. For example, if you don't follow the court order or if you act in a way that is harmful to your children, the court can decide to change the access arrangements.

What is joint custody?

Sometimes a husband and wife want a divorce, but want to continue to share their responsibilities as parents equally.

Joint custody means that both of you have custody of the children. In other words, you both continue to share in making all the major decisions concerning the children (about discipline, school, major outings, holidays, etc.). If there is joint custody, many different living arrangements are possible. The children may live with each parent about the same amount of time or live mostly with one parent.

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Do I have to use the terms "custody" and "access" when deciding upon parenting arrangements?

The Divorce Act uses these terms, but this does not limit the types of parenting arrangements that may be included in written agreements or legal documents. Other words or descriptions can also be used to set out parenting roles and responsibilities.

What alternatives are there to going to court?

Not many parents go to trial about custody. Proceedings can be expensive and stressful both for you and for the children. You have choices other than going to court to reach agreements on parenting arrangements.

  • You can go to a family mediator. A mediator is generally a person with a legal or social work background who has special training in helping people resolve disputes. A mediator works with both of you and helps you discuss and decide on the arrangements for your children.

  • You can meet with a lawyer who will explain your legal rights and obligations and help you negotiate an agreement.

  • You can meet with a family therapist, child psychologist, social worker, family doctor or other professional who knows about the effects of separation and divorce on children of different ages.

Many courts now offer parent-education sessions, which present options for settling the issues you face upon separation and divorce. These sessions also discuss the impact of separation and divorce on children.

If both spouses can agree to all of the issues related to separation and divorce, including issues about property and debt, equalization, and issues about child custody, access and child support, you may be able to save hundreds of dollars on legal fees by using a service that helps you prepare and file your own joint or simple divorce such as this site's sponsor, ezdivorce.ca.

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How is the amount of child support determined?

Even after divorce, both parents have a legal duty to support their children financially.

Once you have worked out the residential arrangements for your children, you will need to look at the payment of child support. Before granting a divorce, the judge must be satisfied that appropriate financial arrangements have been made.

You will use a set of rules and tables, called child support guidelines, to help you figure out the amount of child support. The federal government has produced a number of publications to help you calculate child support.

Who pays child support depends on the child's residential arrangements. The basic amount is based on three things:

  • the payor's income;
  • the number of children involved; and
  • the province or territory where the payor lives.

In some circumstances, the base amount can be increased or decreased. For example, the amount could be adjusted if the children have special expenses, such as childcare. The amount could also be adjusted to prevent financial hardship for a parent or the children. This might be fair when, for example, the parent paying the child support is suffering a hardship—perhaps because that parent is supporting a new family and has a lower standard of living than the parent receiving the child support.

Child support amounts set out in a separation agreement or court order made after April 30, 1997, do not affect income tax.

The person who receives the child support payments does not have to list them as income on his or her income tax form.

The person paying the child support cannot deduct the support payments from his or her income.

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Last updated on October 15, 2017