Separating spouses in Canada and what happens to the children’s living arrangements?

Prior to separation, married or common-law parents separate often do not resolve issues regarding their children.

This article discusses the different types of issues relating to the children in a marital or relationship breakdown.

Types of Parenting Arrangements in Canada:

Primary Care and Sole Decision Making   This occurs when one parent has full responsibility for making decisions involving children and parenting. This primary parent has the responsibility to make decisions regarding school, religion, health care and more. The non-primary parent may be granted limited parenting time and have a right to be kept informed of the child’s development, without however any decision-making rights. This parenting arrangement rarely occurs, and if so, usually involves safety and/or security concerns with the non-primary parent.

Primary Care with Shared Decision Making

In this situation, even if one parent has primary care (meaning more than 60% of the time) the other parent can still have equal decision-making authority. If there is a deadlock between the parents, they often agree to resort to mediation, arbitration, or court intervention. Sometimes the parents also agree that the primary parent will make the final decision after consulting with the other parent – also known as the tiebreaker right.

Shared Parenting

In this arrangement both parents are responsible for making decisions that affect the children and share relatively equal parenting time. When parents disagree about a decision, they may seek mediation or the assistance of a Parenting Coordinator to help reach an agreement. In a shared parenting arrangement, although both parents may be involved in the decision-making process, the living arrangements can vary widely depending on the circumstances.

Split Parenting – If a couple has two or more children, one parent may have primary care of one of the children and the other parent has primary care over (an)other child(ren). This is known as split parenting.

Deciding on Parenting arrangements without Going to Court:

Resolution of parenting issues is best decided outside of the courtroom. The following are available options for the parents to resolve issues without going to court:

Family Mediator – Family mediators are specialists trained to help families resolve disputes. They will work with parents to resolve parenting arrangements of the children jointly and consensually.

Lawyers – Hiring a lawyer can be helpful in arriving at a negotiated settlement relating to parenting arrangements. Each parent must retain their own lawyer who can help explain the legal rights and responsibilities of parenting and assist in drafting a parenting agreement called a Parenting Plan.

Divorce Coaches – In the collaborative divorce setting a divorce coach is engaged to assist with communication between the parties and in reaching a parenting plan.  Divorce Coaches are typically registered clinical counsellors specially trained in assisting separated parents and their child issues.

The Courts decide parenting arrangements

Sometimes parents have no other choice or decide to go to court to reach a decision in the parenting arrangement. When parenting arrangement issues are heard in court, a judge will hear both parents present their evidence and their arguments and will then make a decision. The decision will be based on what the judge believes is in the best interest of the children.

“In the best interest of the Child”.

In Canada, courts deciding children’s issues are guided by the principle of “the best interest of the child”. This is a broad standard, and some of the factors a judge may consider are the following:

  • Which parent the child is most connected with;
  • Each parent’s financial ability to provide for their children;
  • The child’s wishes, if he or she is of an age of maturity to convey to the court their wishes;
  • Which parent was the primary caregiver during the relationship;
  • How much time each parent has available to spend with the children.
  • Any special needs of the child.

The courts also start from the premise that a child is entitled to be with both parents unless there are safety and security concerns that the court must consider.

Final Thoughts

Coming to an agreement on parenting is a major source of stress for separated parents. Even in situations where going to court is not necessary, retaining the services of a lawyer can help remove some of the burden. A lawyer can provide sound legal advice, inform the client of their rights and options, and work with the other parent’s lawyer to reach an agreement that is in the best interest of the children.