Often, deciding on a parenting arrangement after a marriage is over is not
easy. Under the Divorce Act one or both parents may have custody of
the children.
If you cannot agree on a parenting arrangement, the divorce law sets out some
basic principles that a judge must use when making decisions about children.
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The
best interests of the children come first. |
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Children should
have as much contact as possible with both parents so long as
this is in the children's best interests. |
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The past behaviour
of a parent cannot be taken into consideration by the court unless
that behaviour reflects on the person's ability to act as a parent. |
When
deciding on the best interests of the child, the judge will take into
account a number of factors including:
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Care
arrangements before the separation. (Who looked after the child
most of the time? Who took the child to the doctor and dentist?
Who arranged extracurricular activities? Who dealt with the child's
school and teachers?) |
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The parent-child
relationship and bonding. |
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Parenting
abilities.
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The parents'
mental, physical and emotional health.
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The parents'
and the child's schedules.
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Support
systems (for example, help and involvement from grandparents
and other close relatives).
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Sibling
issues. Generally, brothers and sisters remain together, but
under some circumstances it may be necessary to consider separating
them.
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The child's
wishes. (There is no magic age at which a child has the right
to decide where he or she is going to live. The court gives
more weight to the child's wishes as the child matures. An
older teenager's wishes will often be decisive.)
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What is joint custody?
Sometimes both parents want a divorce, but want to continue to share their
responsibilities as parents equally. Joint custody means that both of you have
custody of the children. In other words, you both continue to share in making
all the major decisions concerning the children (about discipline, school,
major outings, holidays, etc.). If there is joint custody, many different living
arrangements are possible. The children may live with each parent about the
same amount of time or live mostly with one parent.
What are my responsibilities if I have custody of my children?
If you and your spouse agree that you should have custody of the children,
or if the judge decides that you should have custody, you have the responsibility
for making the major decisions about your children's upbringing and schooling.
The children will usually live with you most of the time.
In most cases, the other parent still has responsibility to care for the children
some of the time. Remember, the law says that there should be as much contact
as possible with both parents as is best for the children. However, in serious
circumstances, a judge may decide that it is in the children's best interests
not to spend time with the other parent.
Children benefit from the opportunity to develop meaningful relationships
with both parents and with other extended-family members as long as it is
safe and positive to do so.
I don't have custody. Can I still spend time with my
children?
Generally, the parent who does not have custody of the children still has responsibility
to spend time with them. If you cannot agree on these access arrangements,
the court will decide for you.
A parent with access:
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usually
spends time with the children, such as on a weekday evening,
on weekends and on holidays; and |
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may ask for
information about the children—news about their health
and well-being and about how they are doing at school. |
As a
parent with access responsibilities, you can ask the court to order
the other parent to give you advance notice—at least 30 days—if
he or she intends to move the children to another home.
Do I have to use the terms “custody” and “access” when
deciding upon parenting arrangements?
The Divorce Act uses these terms, but this does not limit the types
of parenting arrangements that may be included in written agreements or legal
documents. Other words or descriptions can also be used to set out parenting
roles and responsibilities.
At Russell
Alexander, Family Lawyers our focus is exclusively family law. To find
out more about our services, we invite you to contact
us or call the firm at 1.866.647.6335
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