After 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.
Under Canada’s provincial and federal family laws such as the Divorce Act, “custody battles” (which may fall under the term “corollary relief proceeding”) is where a parent or both parents, and a third party, may apply for “child custody” (now called “parenting arrangement”).
A favourable parenting arrangement may be reached through:
- a court order issued by the judge outlining the arrangement, parenting plan, or contact order for the family
- a family dispute resolution process, where it is the parents themselves who come up with the arrangement or parenting plan
Who wins most custody battles?
Statistically speaking, most couples agree that the mother should have a preferential arrangement over their child or children. This happens more commonly in extra-judicial processes (out of court). Parents could reach a mutual agreement outside of the court, with or without the help of a family mediator, or after an evaluation on the family situation was made.
In Canada, custody battles may be done judicially (which may fall under the “corollary relief proceeding” of the Divorce Act) or extrajudicially (written or verbal arrangements outside the court, with or without a family mediator or conciliator).
According to surveys, Canadians tend to rely on extrajudicial settlement of custody battles, although the numbers of parents applying for corollary relief proceedings are rising. This is because a judicial custody battle may be legally enforced once there has been breach of the parenting order.
What is the most common custody arrangement in Canada?
A judicial custody battle (or corollary relief proceeding) usually results in sole custody (now called sole decision-making responsibility). Statistics show that this is the most common custody arrangement in Canada and in other countries.
It all still depends on the judge presiding over the judicial custody battle (corollary relief proceeding). This is without prejudice to any agreements being decided by the parents themselves through a family dispute resolution process.
What are the rules for child custody in Canada?
Until the court or the judge decides otherwise, both parents shall have joint decision-making responsibility (or joint custody) over their child.
A parent who does not want joint custody should apply for a different parenting arrangement (Section 16.1(1)(a)) through a judicial custody battle (or corollary relief proceeding) or have their existing arrangement amended or changed (Section 17(1)(b)).
If a parenting arrangement was reached by both parents outside a court proceeding, the parent who wants their existing arrangement changed may also ask the other parent for its amendment.
The Divorce Act has prescribed rules against the relocation, supervision, and removal of the child. The final parenting order from the judge or court may state that consent from the other parent is required.
What do judges look for during a child custody case in Canada?
According to the Divorce Act, the ultimate consideration of judges in deciding on child custody is the best interests of the child (Section 16(1)).
This is in addition to the child’s needs; views and preferences; and cultural, linguistic, religious and spiritual upbringing and heritage, among others.
The judge may also consider any impact of family violence (Section 16(4)). Some of these factors are:
- the ability and willingness of the parent who was engaged in family violence to care for their child in relation to the nature, seriousness, and frequency of family violence
- the harm inflicted or the risk of harm to the child
- the steps taken by the parent engaged in family violence to prevent any future occurrence
The past conduct of a parent (Section 16(5)) will not be considered in deciding on parenting arrangement (or child custody), unless that past conduct is relevant.
How does a judge decide custody in Canada?
A judge will decide on child custody by rendering what is called the parenting order. The arrangement that applies will be either a sole or joint custody (decision-making responsibility).
A court order may be requested by one or both parents, and by a third party but only with leave of court (permission of the court) (Section 16.1(3)).
The court order or parenting order will include the allocation of parenting time among the parents, allocation of the decision-making responsibilities, communication arrangements, and any other appropriate matters to be determined by the court (Section 16.1(4)).
It's up to the court to decide on the type of custody that applies to the family.
At what age can child decide custody in Canada?
During court proceedings on child custody, the judge may consider the child’s views and preferences (Section 16(3)(e)). These may be taken into consideration based on the child’s age and maturity. As the child reaches the age of majority, the court may base its decision solely on the child’s preference, still with the child’s best interest at heart.
Do you have other questions regarding custody battles (parenting arrangements) under Canada’s family law? Consult with the list of the best family lawyers near your area or comment down your questions below.