PARENTING OF CHILDREN

In Canada, the term "custody" plays a pivotal role in family law. It is a term found in the federal Divorce Act and, at times, provincial legislation. Understanding this concept is crucial for parents navigating the complexities of separation and divorce, especially when children are involved. Let's delve into this intricate subject, bearing in mind that the legal landscape can vary across Canada.

The Essence of Custody:

Custody refers to the legal determination of where a child will primarily reside after their parents have separated or divorced. While the Divorce Act employs the term "custody," the actual wording may differ from one Canadian province to another. However, the underlying principles remain consistent nationwide.

Putting the Child First:

Canadian law places paramount importance on the best interests of the child. The central question in custody matters is always, "What is in the child's best interests?" This approach underscores that custody decisions are not driven by the convenience or desires of either parent but by what serves the child's well-being.

Shared Parenting and Joint Custody:

While joint custody or a perfectly equal "50/50" sharing arrangement is not automatically assumed, it is a common solution when it aligns with the child's best interests. The primary focus remains on the child's welfare, ensuring their needs are met effectively.

Cooperation Amidst Challenges:

Separating or divorcing parents face a significant challenge: separating their own needs and wants from what is truly in the "best interests" of the child. This can be complicated by power struggles or control dynamics, and sometimes, parents believe that obtaining custody is necessary to receive child support.

The Legal Imperative:

In Canada, the law mandates a parenting arrangement that prioritizes the child's best interests. It is not about favoring one parent over the other, nor is it driven by financial considerations like who has the better house, job, or education. Custody arrangements must be addressed first, followed by child support considerations.

Cooperation and Mediation:

Separating parents are encouraged to focus on the child's best interests and strive for cooperative solutions. In practice, this is often easier said than done, but many parents find that involving a counselor or mediator can facilitate constructive discussions.

When engaging in these discussions and negotiations, keep these principles in mind:

1. Embrace Change: No matter what terms you and your spouse agree upon, it's crucial to understand that the court can review and modify parenting arrangements as circumstances change. Unlike property settlements, parenting matters are always subject to review.

2. Change Is Inevitable: So, it's important to realize that the parenting agreement you establish now may not remain fixed forever. Your children will grow, and as they do, their preferences, interests, and your own situations will evolve. Keep this in mind as you discuss arrangements with your ex-spouse.

3. Child's Wishes: Your child's wishes do matter in custody matters, but they usually don't have the final say. The preferences of a young child carry less weight in court compared to those of a mature 16-year-old. 

4. Sibling Bonds and Stability: there are no one-size-fits-all rules that apply to every child. However, courts often prioritize keeping siblings together and avoiding arrangements that involve frequent moves between parents' homes. While short visits and regular exchanges can be suitable, especially for infants, it's usually not in the best interest of teenagers to switch residences on a daily basis. 

5. Safety and Well-being: In custody cases, courts generally don't favor accusations of bad behavior or involvement with new partners. However, they take family violence and clear evidence of drug or alcohol abuse seriously. These are factors that courts exercise caution and discretion in handling. 

6. Child Support Considerations: When one parent has custody of a child for over 40 percent of the time, they might not be obligated to pay the base child support. However, they will still be required to contribute to special and extraordinary expenses. While custody arrangements and "parenting time" can significantly influence base child support, it's essential to remember that the primary consideration is the best interests of the child. 

7. Mobility Issues: When there's a possibility that the residence of parents (and children) may change, especially if the move is causing disputes, seeking legal counsel is advisable. Relocation, also known as "mobility," is a complex legal issue typically determined based on previous legal cases. Providing notice of a planned move is crucial, and in some provinces, it's even mandatory. 

8. Adolescent Changes: While property division arrangements are generally fixed and cannot be altered, custody and access terms can be revisited periodically. This flexibility is especially important during the tumultuous adolescent and teenage years when children may express a desire to change their living arrangements. In such cases, if it's established that such a change benefits the child's best interests, adjustments to the agreement can be made, allowing the child to relocate. Typically, these modifications also entail changes to child support arrangements. 

9. Unconventional Language: In some cases, separated parents opt for informal and neutral language to outline their custodial arrangements. They may use terms like "shared parenting" to express their agreed-upon terms. While this creative approach can be practical for the involved parties, it can pose challenges if disputes arise related to child support and mobility.