Following the amendments of Canada’s Divorce Act and starting March 1, 2021, the terms “child custody” or “child access” are now replaced with the more family-law leaning terms of “parenting arrangement” or “parenting time”, respectively.
How can I get sole custody in Canada?
Obtaining sole custody or sole decision-making responsibility over a child or children would depend upon the court or the judge, or upon agreement by both parents.
Judicial Proceedings
In a judicial process of divorce or in an application for a parenting order under the Divorce Act, the court or judge will determine the parenting arrangement (custody arrangement) and parenting time (child access) that will apply to the family (Section 16.1(4)).
As its consideration, the law specifically provides that the court or the judge will base the determination of parenting arrangement and parenting time on the best interests of the child (Section 16(1) and Section 16(6)), along with the other factors stated in the Act.
Here, the parent who wants to assume sole custody or sole decision-making responsibility over their child or children must prove, through convincing evidence based on a high burden of proof, that this is with the best interests of the child or children.
In other words, the applicant of a sole custody or sole decision-making responsibility must both have compelling reasons and strong evidence to show the court why the applicant-parent is deserving to have such sole custody or sole decision-making responsibility. It may also be possible that an initially joint, shared, or split parenting arrangement be converted by the court into a sole decision-making responsibility, but only for reasonable grounds and if the change is according to the best interests of the child or children.
A judicial proceeding to determine a parenting order may be necessary when the parents cannot come to an agreement for what is best for their child or children, or when there’s safety issues or concerns that cannot be addressed by the parents or even with the help of family mediators or conciliators.
The above video is specific to Ontario. Be sure to contact an Ontario-based family lawyer if this is your situation.
Family Dispute Resolution
Parents may decide on their parenting arrangements and parenting time without the intervention of the court through undergoing a family dispute resolution. The court or judge may also order the parents to undergo such resolution, if it thinks that extrajudicial resolution is still possible and only if it is still appropriate given the circumstances of the family (Section 7.3).
There are various modes in family dispute resolution, such as negotiation, mediation, collaborative law, or arbitration. After undergoing the process of family dispute resolution, the parents may decide on the best parenting arrangement for their child or children or may refer this determination to the court in case of disagreement or other safety concerns.
What are my rights if I have sole custody in Canada?
When one of the parents is granted sole custody or sole decision-making responsibility by the court or by agreement with the other parent, the said parent shall have all the rights and responsibilities which is normally exercised by both parents. This means that all day-to-day decisions and major decisions shall be decided only by the one parent. It also means that the child or the children would exclusively reside with this parent.
What is the most common custody arrangement in Canada?
Under Canadian family law and the Divorce Act, the following are the most common parenting arrangements or custody arrangements in Canada:
- Shared Custody (now Shared Parenting)
- Split Custody (now Split Parenting Time)
- Joint Custody (now Joint Decision-making Responsibility)
- Full or Sole Custody (now Sole Decision-making Responsibility).
These custody arrangements may be determined either by the parents extrajudicially – through family dispute resolution – and be included in the family’s parenting plan; or if the parents cannot agree, it may be determined by the court or the judge, through the execution of a parenting order which may include a previously-agreed parenting plan.
[1] Shared Custody / Shared Parenting
Shared parenting (called shared custody in the past) is defined as an arrangement involving one child, where the said child spends at least 40% of the time with each parent. It may also mean that each parent has nearly equal time in caring and housing their child. Shared custody or shared parenting is also referred as dual parenting, dual residence, joint physical custody, time-sharing, or co-parenting; although these terms are effectively replaced by the term “shared parenting”.
[2] Split Custody / Split Parenting Time
Split parenting time (previously referred to as split custody) is a parenting arrangement involving more than one child. It is where each parent would have split parenting arrangement over their children; or where each parent has 60% of the parenting time over at least one of their children. Depending on the parenting order or parenting arrangement, the children may also live with the other parent on a rotational basis. For example, if there are four children, the mother and the father would each have parenting time over two children.
[3] Joint Custody / Joint Decision-making Responsibility
In a joint decision-making responsibility (or joint custody), each parent would have equal parenting time over their children. Here, both parents make major decisions about their children’s welfare together and parental duties are equally shared between each parent. Joint decision-making responsibility is the more common parenting arrangement, especially for parents who may have difficulty arriving at a common decision regarding their parenting arrangements.
[4] Full or Sole Custody / Sole Decision-making Responsibility
Full or sole decision-making responsibility (previously full or sole custody), only one parent has been granted, or has been agreed upon, to have the parenting arrangement or parenting time. This means that the other parent does not have any parenting time with their child or children, as stated in the parenting order or parenting arrangement which will govern the family. Where the other parent is granted with minimal parenting time, or has minimal decision-making responsibility, it may be fall under joint decision-making responsibility (or joint custody).
Learn more about parenting arrangements or parenting time (sole custody) in Canada by consulting with the best family lawyers in Canada available in your province.