Children During Separation and Divorce

If you and your husband have separated or are divorced, you will need to make important decisions about the children you have together. Decisions such as how often they will see each of you, how much financial support each of you will provide for the children, and how much input each of you will have in making decisions for the children. All of these concerns fall under the issue of custody.

When your child is born, you and your husband are considered his or her guardians. This responsibility does not end if the marriage does. Whether you are living together or not, both you and your husband are still responsible for the well-being and health of the child. You are both responsible for making important decisions that affect the child’s life and upbringing.

The word “custody” generally refers to the major decision making regarding the child. It is sometimes also used to describe how the time with the children will be shared both during and after separation and divorce (although this is now commonly referred to as the “parenting arrangement”). A custody agreement between you and your husband can be reached privately or through the courts. The legal system in Canada encourages families to work out issues in the best way for them. So if you have come to an agreement, the courts will not usually disagree with this. If you and your husband cannot come to an agreement, the courts will decide and that order is a legal document that must be followed.

The first consideration is always what is best for the children. This is called the child-centred approach and it is an important part of Canadian family law.

There are several different kinds of custody:

Joint Custody – this means that both parents have an equal say in all major decisions regarding the children and they must agree on those decisions. This does not refer to equal time spent with each parent. So, the children may live with one parent most of time but the other parent still has equal say in the decision-making.

Sole Custody – this means that one parent has the right to make all major decisions regarding the children without having to consult the other parent. Usually, the children will live with the parent who has sole custody. This does not mean, however, that the other parent will not be able to see the children. The other parent can be granted “access” unless it is proven that this would be harmful to the children. In such cases, the parent who does not have custody can be granted supervised access.

Split Parenting / Custody – This means that one or more children reside with one parent, and the other children reside with the other parent.

Shared Parenting / Custody – this means that the children live at least 40% of the time with each parent. For example you may have one parent given custody for 40% of the time and the other 60%, or both having the child 50% of the time.

Interim Custody / Parenting – temporary custody and parenting arrangements, generally with a fixed beginning and a fixed end, before the custody and parenting arrangements are finalized.