Laws on child custody in Canada are governed by the Divorce Act, which is the federal Canadian law regarding divorce and other corollary relief provided for either parent and their child or children.
Following the amendments to the Divorce Act effective March 2021, the Act's provision defining “custody” has been repealed, and the terms “child custody” or “child access” are no longer used in the Act, or even in practical application.
Currently, Canada's laws on child custody uses the term “parenting arrangements” or “parenting order”. This is to remove any negative connotation associated with the term “custody” when referring to a child.
Notably, parenting orders issued before March 2021 still governs families who relies on it, and changes in the Act does not belong to “change in circumstances” referred in the Act which may allow parents to change their existing parenting order.
Parenting Arrangements or Parenting Orders
In crafting parenting arrangements or parenting orders after the parents' divorce, the laws on child custody provides for the rules on the determination of parenting time, the considerations in making the parenting arrangement, and other matters related to the child’s or the children’s welfare after divorce.
Basically, a parenting order determines the exercise of parenting time or decision-making responsibility of any parent over the child after divorce. The Act provides a parenting order may be provided by any court, upon application by either parent before the said court. Additionally, the parenting order may also be applied by any person, other than a spouse (Section 16.1(1)). Aside from arrangements on parenting time or decision-making responsibility, a parenting order may also include arrangements on communication between the child and the other spouse (Section 16.1(4)).
Similarly, provincial and territorial laws on child custody and divorce also provides similar rules on parenting arrangements for unmarried parents, or for married parents who separated but did not apply for divorce.
Laws can be different from one province to the next. Be sure to speak with a family lawyer in your area. Those in British Columbia will have to be sure to see a family lawyer in BC for the exact details they need.
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How is Canadian child custody or parenting order determined?
In making a parenting order (previously called child custody) or a contact order in Canada, a court or a judge considers only the best interest of the child (Section 16(1)).
The Act also provides that the child’s physical, emotional, and psychological safety, security, and well-being are the primary considerations (Section 16(2)) in determining the best interests of the child in a proceeding for a parenting order or contact order, and according to the following factors (Section 16(3)):
- the child’s needs;
- the child’s relationship with each spouse;
- each spouse’s willingness to support the child’s relationship with the other spouse;
- history of care of the child;
- the child’s views and preferences;
- the child’s cultural, linguistic, religious, and spiritual upbringing and heritage;
- any family violence; or
- any relevant civil or criminal proceeding.
Generally, the past conduct of any person or any spouse is not taken into consideration in the determination of the parenting order or contact order, unless the said past conduct is relevant for the parenting time, or decision-making responsibility of the applying person or spouse (Section 16(5)).
Who is most likely to get custody of a child in Canada?
Statistically speaking, the conditions of parenting orders (called child custody in the past) are mostly in favor of mothers when the child is under 12 years old. Although, as the child gets older, most fathers tend to acquire favourable judgment of parenting orders for them.
However, the sole determination of parenting orders will be on the court or the judge, depending on the case’s circumstances and the necessary factors, as outlined in the Divorce Act and its regulations.
Can a spouse move a child away from the other spouse in Canada?
The laws on child custody in Canada generally prohibits any relocation or a change of residence of the child without the consent of the spouse and/or the court.
According to Canada’s Divorce Act, the parenting order may either authorize or prohibit the relocation of a child (Section 16.1(7)), and the same parenting order may also prohibit the removal of the child from a specified geographic area (such as any of the spouse’s residence) without the written consent of any specified person in the order (such as the other spouse) or without a court order from the court which rendered the parenting order.
A change of residence, other than relocation, needs notification to the other spouse, or any other person under a contact order (Section 16.8 (1)). For change of residence, the other spouse, or any other person under a contact order, must be notified 60 days before the intended relocation (Section 16.9 (1)).
However, the court may order that a notification is unnecessary for a change of residence or relocation, especially where there is a risk of family violence (Sections 16.8(3) and 16.9(3)).
At what age in Canada can a child decide which parent to live with?
There is no specific age where a child can decide which parent they would want to live with. Although, according to the Divorce Act, a child’s view and preference may be considered by the court or the judge in determining the conditions of the parenting order (Section 16(3)(e)). The child’s opinion also depends on the child’s age and maturity, since the older or the more mature the child is, their opinion would be given more weight by the court or the judge.
During court proceedings for a parenting order, the child’s view and preference may be determined through an interview or a series of interviews to be conducted by:
- a mental health professional;
- the lawyer for the child and/or the judge handling the case; or
- a qualified neutral third party, (e.g., a social worker, a lawyer, or a clinical counsellor).
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