By Kathleen Wells, Wells Family Law
When families with children are going through a separation, often the most significant disputes involve children and custody arrangements. Obviously, parents will be concerned that their children receive the best possible care, but what does that look like to the court, if called upon to decide these issues?
What does “Custody” mean?
It is first helpful to define what “custody” actually means in Canadian law. Custody does not have a narrow, single meaning. “Custody” is defined in the Divorce Act [1] as care, upbringing, and any other incident of custody. Canadian courts have interpreted custody to mean the full bundle of parental rights, including the responsibility to oversee all aspects of the child’s daily life, and the ability to make major decisions about the child’s education, religion, health, and wellbeing, as well as physical control over the child. It can mean the day-to-day care and control of the child – where the child will live on a daily basis. However, in family law, custody is generally taken to mean more than just where the child will ordinarily live. It is important to note that custody means something different than “access,” which is the amount of time a child spends in a parent’s care.
It has recently been proposed that the word “custody” be phased out and replaced with “parenting” or “parenting time.” The reason for this is that the word “custody” is generally taken to be adversarial, and the phrase “parenting time” is more akin to a friendlier, more desirable arrangement between exes.
Types of Child Custody
There are several different types of custody orders that a court can make, including:
Sole custody
Sole custody means that one parent has all of the rights to make decisions about the wellbeing of the child; this parent is solely responsible for the full bundle of parental rights. The other parent, usually referred to as the access parent, can provide their opinion on major issues concerning the child, but the parent with sole custody has the final say in all parenting decisions.
Joint custody
Joint custody typically means that both parents have an equal right to make important decisions about their child. Before a court will award joint custody over a child, they must be convinced that the parents will be able to work together cooperatively to parent the child. Communication between the parents will be key, along with a willingness to set aside conflict and work with the other parent.
Split custody
Split custody situations will occur when both parents have custody of one or more of the children; essentially, one or more children live with each parent. Split custody is uncommon because the courts do not like separating siblings.
Shared custody
Shared custody means something different than joint custody. In a shared custody situation, a child’s time can be split between parents in a roughly equal way; this arrangement is more about access (time spent with a child) than custody (legal decision-making power). It is possible to have a shared custody arrangement with one parent having sole custody.
Of course, what a custody arrangement looks like in each family will depend on their unique situation.
Custody is Awarded in the Best Interest of the Child
When awarding custody and making custody arrangements, there are many factors that the court will take into account. However, there is one thing that will be considered above all others: the best interests of the child. The Divorce Act clearly states that whenever a court makes a custody order, they must take into consideration only the best interests of the child by looking at the condition, means, needs, and other circumstances of the child [2]. Factors like the past conduct of the parents are not to be considered in making custody awards, unless that conduct might affect the parent’s ability to act as a parent or would be contrary to the child’s best interests [3].
What Constitutes the Best Interests of the Child?
The Alberta Family Law Act [4] adds some clarification to the issue of what constitutes the best interests of the child. While also stating that the court must only take into consideration the best interests of the child when making a custody order, several factors are set out to guide the court. To determine what is in the best interests of the child, the court shall consider, among other factors:
- The greatest possible protection for the child’s physical, psychological, and emotional safety;
- The child’s physical, psychological, and emotional needs, including the child’s need for stability;
- The history of care of the child;
- The child’s cultural, linguistic, religious, and spiritual upbringing and heritage;
- The impact of any family violence on the child;
- The ability and willingness of each party to care for and meet the needs of the child; and
- The nature, strength, and stability of the relationship between the child and other significant people in the child’s life.
The child’s views and preferences about custody may also be taken into consideration by the court, to the extent that it is appropriate and possible to determine these views.
The Supreme Court of Canada has also provided some clarification about what is meant by “best interests of the child. [5]” In the case of Young v. Young the court affirmed that the “best interests of the child” test is the only factor for a court to look at when making custody or access orders: parental preferences and rights have no role. The test is broad, flexible, and up to the discretion of the judge [6]. The courts must consider a wide variety of factors in this test: one of these is maximizing the contact between the child and each parent.
If you have questions about custody and parenting arrangements, please CONTACT Wells Family Law for a free consultation – we are Calgary-based divorce lawyers who are committed to a fast and effective resolution of your divorce or separation needs.
[1] Divorce Act, RSC 1985, c. 3 (2nd Supp.) at s. 2 (1).
[2] Divorce Act, supra, at s. 8.
[3] Divorce Act, supra, at s. 9.
[4] Alberta Family Law Act, SA 2003, c. F-4.5.
[5] Young v. Young, [1993] 4 SCR 3.
[6] Young v. Young, supra, at para. 211.