Child Custody in Ontario | Joint, Sole, Split
During a separation or divorce one of the biggest challenges is agreeing upon the specifics of child custody. When it comes to child custody in Ontario the courts have one main focus: the best interests of the children.
At the Divorce Centre our main objective is to avoid needless expenditures and to come to fair resolutions, with or without the need for Family Court intervention. This objective naturally extends to the children involved. The founder of the Divorce Centre (Mr. John C. Menear HBA, LLB) is also a founding member of the Canadian Equal Parenting Council, which is dedicated to developing healthy child custody arrangements, so that children have the benefit of two parents in their lives.
What is Child Custody?
Child custody is a legal term used to describe the legal and practical relationship between a parent and his or her child. Fundamentally ‘custody’ is the legal right of the parent to make decisions for the child. It is the parent’s obligation to care for the child.
Types of Child Custody in Ontario:
Joint Custody: Both parents have custody of the children. This type of custody is for parents who are able to cooperate on parenting matters in the best interest of the children.
There are 2 forms of joint custody in Ontario:
1 – Joint Legal Custody: In joint legal custody situations both parents have input into major decisions affecting the children, including health and education. The residence and visitation arrangements for the children may vary widely.
2 – Joint Physical Custody or (Shared Custody): With joint physical custody both parents spend at least 40% of the time with their children.
Sole Custody: Only one parent has custody of the children. The children reside with the parent who has sole custody and the other parent may or may not have access and visitation rights.
Split Custody: One parent has custody of some of the children, and the other parent has custody of the other children. Splitting younger children from their siblings is very rarely advisable; however pre-teens and teenagers do often choose to live with different parents.
Child Custody Agreements
More and more separating and divorcing families are considering joint custody arrangements. Whether or not the agreement is technically classified as ‘joint legal custody’ or ‘joint physical custody’ is irrelevant. The fundamental principal of a joint custody agreement is that both parents have custody and that they work together cooperatively for the best interests of their children.
Joint custody does not mean that children reside equally with both parents. Joint custody arrangements vary greatly on the specifics of residence of the child. Many agreements provide a child with a primary residence and a secondary residence with the other parent on weekends, holidays etc.
Tailoring a positive joint custody agreement requires specifically analyzing the routines and needs of a particular parental and child unit, while focusing on the needs of the child. In order to produce quality joint custody agreements these factors must be considered during joint custody negotiations, and formalized in joint custody agreements. This is why we provide on-site lawyers and access to experienced mediators and counselors.
What is consistent in almost all joint custody arrangements is a commitment by the parents to work together cooperatively even though they are separated, and make wise decisions for the benefit of their children. This encourages the children to have strengthened healthy relationships with both of their parents.
Prior to the 1980’s sole custody agreements were the most common method of caring for children of separated and divorced parents. Sole custody is when one parent has physical and legal custody of a child. The parent with sole custody can make all of the important decisions in the child’s life.
The other non-custodial parent usually has ‘access’ to the children, meaning that they have the right to some share of physical time with the children. The non-custodial parent with ‘access’ to the children may have the right to make inquiries and to be given information regarding the health, education, and welfare of the children.
It is an incorrect assumption that if a parent with sole custody dies, the other parent automatically receives custody. This is not necessarily true. A parent with sole custody can choose who will have custody of their child for the first 90 days after their own death. The person they choose can then apply to the court to have custody of the child after that.
Split custody is when one parent has sole custody of one of more children and the other parent has custody of the remaining children. Split custody is not very common and in only very rare circumstances can it be beneficial to a child to be separated from their siblings.
However, split custody agreements sometimes become relevant as children become older. Pre-teens and teenagers stated preferences can have a more significant influence on the outcome of a child custody agreement. The views of pre-school or primary grade children will typically be less influential.