Children > Custody in Canada

Where a couple have children younger than the age of majority, decisions must be made about how the children will be brought up, who they will live with, and how they will be cared for. For many people, disputes about parenting issues like these are the most difficult consequences of the end of a relationship.

The chapter will discuss the difference between custody and guardianship and review the legislation which talks about custody. It will look at the factors which go into an order for custody, the different types of custody order, and the types of people who are entitled to make an application for custody.

I. Custody and Guardianship

The difference betwen custody and guardianship can be a bit fuzzy, especially in British Columbia. At the most basic level, "custody" can be thought of as having the home where the child usually lives and the day-to-day responsibility for the child, even though more than one parent can have that home, while "guardianship" is having the right to make parenting decisions and direct the course of the child's life and upbringing. As you can probably guess, there is a lot of overlap between the rights and obligations involved in custody and those involved in guardianship.

It might be easiest to start with guardianship first, because while having custody includes having guardianship, having guardianship doesn't always include having custody. Guardianship is the right to play a full and active parenting role in a child's life, including participating in and making decisions about the child's moral, religious and social education, the child's formal schooling, health care, social environment and sports and recreational activities. A person with guardianship can get information from and give instructions to the important people involved in the child's care, such as teachers, doctors, dentists and therapists.

Custody includes all of the rights associated with guardianship plus the right to have physical care and control of the child. Having physical care of the child, however, doesn't necessarily mean having the child all the time, half the time or even for lot of time. Parents can share custody even though the child lives mostly with one of the parents.

Because of certain complicated legal principles involving things like the doctrine of paramountcy, the following combinations of custody and guardianship are available:

1. joint custody and joint guardianship;
2. sole custody and joint guardianship; and,
3. sole custody and sole guardianship.

It is not possible for the parties to have joint custody while one parent is the child's sole guardian.

A. Downloads

The distinction between custody and guardianship is not without controversy, and you need a bit of a historical perspective to understand it properly. These documents are drawn from posts to my blog on the subject and talk about the relationship between custody and guardianship in more detail.

• What Custody and Guardianship Really Mean, from August 2009 (PDF)
• Custody and Guardianship, from June 2010, about why you can't have joint custody and sole guardianship (PDF)

The rest of this chapter will talk about custody in a lot more detail, and the next chapter, Children > Guardianship, will give a similar discussion about guardianship.

II. The Divorce Act and the Family Relations Act

Both the federal Divorce Act and the provincial Family Relations Act deal with the custody of children, however the Divorce Act applies only to married couples. The Family Relations Act, on the other hand, is available to anyone seeking custody of a child, including married couples and people who aren't the biological parents of a child. While the two acts are generally the same, there are a few important differences:

Who is a child?

• The Divorce Act calls children "children of the marriage," and s. 2(1) of the act defines a child of the marriage as the child of one or both spouses, providing that the child is under the age of majority at the time, or older but unable to withdraw from the care of his or her parents.
• The Family Relations Act, at s. 1(1), defines a "child" as a person under the age of nineteen, and s. 87 says that adult children can also be "children" for the purposes of the part of the act which deals with child support.

Which act applies?

• The Divorce Act is only available to parents who are or used to be married to each other, and the person making the application must have been "habitually resident" in the province in which the appliction is made for at least one year.
• The Family Relations Act is available to anyone, providing that the child is "habitually resident" in British Columbia at the time the application is made.

Does custody include guardianship?

• The Divorce Act only deals with custody and access. Under this act, guardianship is a part of having custody, so a person with a Divorce Act order for the custody of a child automatically also has guardianship of the child.
• The Family Relations Act deals with both custody and guardianship, and orders made pursuant to this act usually provide for custody and guardianship separately. Section 27(4) of the Family Relations Act says that where an order for custody under the Divorce Act has been made, the custodial parent is also the child's guardian.
• In general, an order for custody under either act is considered to include an order for guardianship unless the order separately provides for guardianship.

A. Key Statutory Provisions

These are the important sections of the Divorce Act which talk about custody.

• s. 2: definitions
• s. 4: the court's jurisdiction to make custody orders
• s. 5: the court's jurisdiction to change orders
• s. 16: custody orders
• s. 17: variation proceedings

These are the important sections of the Family Relations Act on the subject.

• ss. 1, 21: definitions
• s. 9: interim orders
• s. 20: changing or cancelling orders
• Part 2: child custody, access and guardianship
• s. 24: the best interests of the child are paramount
• s. 34: who may exercise custody
• s. 35: custody orders
• ss. 36, 38: enforcement of custody orders
• Part 3: out-of-province child custody, access and guardianship orders

III. Factors in Custody Awards

There are really two sets of factors that the court will consider in making an order for custody: the factors set out in the legislation and the additional factors which have developed through the courts.

As far as the legislation is concerned, s. 16(8) of the Divorce Act provides that:

In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

and s. 24 of the Family Relations Act says that:

(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances:

(a) the health and emotional well being of the child including any special needs for care and treatment;

(b) if appropriate, the views of the child;

(c) the love, affection and similar ties that exist between the child and other persons;

(d) education and training for the child;

(e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.

(1.1) The references to "other persons" in subsection (1)(c) and to "each person" in subsection (1)(e) include parents, grandparents, other relatives of the child and persons who are not relatives of the child.

(2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of the child.

(3) If the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court must not consider that conduct in a proceeding respecting an order under this Part.

(4) If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to the extent that the conduct affects a factor set out in subsection (1) or (2).

These sections of the legislation set out the criteria which a court must consider in making an order for custody. Some additional considerations have developed through the common law which the court may consider, including the following general principles:

1. the parent most likely to be granted sole custody is the person who was the children's primary caregiver during the relationship, assuming that it's necessary to make an order for sole custody for some reason;
2. each parent's character, personality and moral fitness may be considered in determining custody, depending on the circumstances of the case, as long as issues like this are genuinely important and relevant;
3. the court may consider each parent's mental and physical capacity in determining custody, depending on the circumstances of the case;
4. siblings will usually be kept together, although they can be separated in certain circumstances;
5. where the children are in a stable and satisfactory setting, the court will be reluctant to alter the status quo, unless the long-term interests of the children outweigh the benefits of the present stability; and,
6. the court will generally take into account the preferences of children who are ten years old or older, but the court will not be bound to follow the children's wishes.

There is no guaranteed way to predict the outcome of a battle for custody. Some people believe that the courts will prefer giving custody of children to their mothers; others believe that the courts have adopted a more modern approach which focuses on parenting rather than gender. Either way, the critical factor in a custody award is the best interests of the child, and the parent who is obviously the primary caregiver will usually be the person with whom it is in the child's best interests to remain.

A. Custody and Access Reports ("Section 15 Reports")

Section 15 of the Family Relations Act allows the court to order that an assessment be conducted of each party's parenting abilities and relationship with their children by a mental health professional. These are known as "section 15 reports" or "custody and access reports." These reports are particularly important where the dispute between the parties is especially fractious and unlikely to settle.

The Supreme Court of British Columbia, in a 2001 case called Gupta v. Gupta, described s. 15 reports this way:

"The purpose of a Court ordered s. 15 Assessment and Report ... is to assist the Court in determining the issues before it, including the paramount of issues of what is in the best interests of the children. The section itself contemplates that the person doing the investigation must be approved by the Court, and must be independent or neutral. ... The investigation is carried out for the purposes of the Court, and in the best interests of the children, and not those of the partial parents who are embroiled in what is seen as the dispute of their lives, who generally represent the extremes of every issue, and whose evidence is often found to be coloured to say the least."

When a s. 15 report is required, the court will usually name a particular psychologist or psychiatrist to conduct the assessment. In the provincial court, the court will usually refer the parties to the family justice counsellor office.

Ordinarily, the assessor will meet each of the parents separately and meet them each again in the presence of the children. If the children are old enough, the assessor may speak to the children separately. The assessor may also speak to other people who know the parents and their children, such as friends, family and neighbours, the children's teachers, and any counsellors or therapists.

Once the report is finished, which can take anywhere from two months to eight months, the assessor sends the report to both parties. These reports can be used in two ways: to encourage settlement; and, at trial, to persuade the court that one parent is to be preferred over the other. The person who prepared the report can be called to testify at the trial and will be subject to cross-examination as to how the assessor reached his or her recommendations.

It is important to remember that the function of the assessor in court is to present his or her recommendations and the evidence that he or she relied on, such as test scores and interview observations, in coming to those recommendations. At the end of the day, it is always up to the judge to decide the parenting arrangements for the children. A s. 15 report is merely the assessor's recommendation to the court based on his or her particular expertise as an experienced psychologist, psychiatrist or family justice counsellor; the report is not a final determination of the issue.

A list of some of the psychologists and psychiatrists who prepare s. 15 reports is provided in the Resources & Links section.

B. Views of the Child Reports

A views of the child report, sometimes called a "hear the child report," is exactly what it sounds like: it is a report which describes the child's preferences about his or her parenting arrangements and living circumstances. These reports might address a child's preferences about the home he or she would like to live in, whether the child wishes to move out of town with a parent, or the schedule of the child's time with each parent. It might address the child's experiences of the conflict between his or her parents, or perhaps the child's experience with a parent's new partner.

These reports are ordered under s. 15 of the Family Relations Act, just like custody and access reports are ordered. Section 15 is broadly worded and says that the court can order "a person" to prepare a report "in the manner the court directs." As a result, there are two types of views of the child report, one type prepared by experts, like psychologists and psychiatrists, and another type prepared by lay persons, like lawyers, family justice counsellors and therapists.

Although views of the child reports can usually be finished much more quickly and more cheaply than s. 15 reports, they are no substitute for a proper custody and access report. Parents who want a views of the child report must understand that these reports do not provide the full reporting, testing and analysis offered by a custody and access report, particularly when the person preparing the views of the child report is not a psychologist or psychiatrist.

It is important to know that the court will not make a decision based only on what the views of the child report says. The child is not making the decision and will not be responsible for making the decision. It's important for the child to know this as well.

1. Expert Views of the Child Reports

Expert views of the child reports usually wind up looking like condensed custody and access reports which focus on the child's reports to the asssessor and include an opinion as to whether the child's reported preferences represent the child's true preferences, whether the child was coached to report the preferences reported, and perhaps whether the child is being alienated from one parent by the other parent.

The assessor will usually meet with the child at least once, in fact probably more than once, and will administer a variety of tests intended to give the assessor more insight into the child's preferences and state of mind. The assessor may or may not collect additional information from the parents or the other people involved in the child's life.

Because these reports do not involve the same extensive interviews and testing involved in custody and access reports, they tend to be cheaper to prepare and they should be prepared faster than custody and access reports.

These sorts or reports are generally only appropriate when:

1. a full custody and access report isn't necessary;
2. the child is more than six or seven years old; and,
3. the judge wants to hear from the child but does not want to interview the child him- or herself.

2. Lay Views of the Child Reports

Views of the child reports prepared by lay persons like lawyers, family justice counsellors or therapists do not provide the same level of analysis or authority offered by expert views of the child reports. These people are not qualified to offer an opinion about the child's state of mind or the truthfulness of the child's statements. All they can really do is say what the child told them.

The assessor will generally meet with the child once and speak with each parent once. The assessor will generally know very little about the background of the case before meeting the child except for what the child's parents have explained.

Because these reports involve no testing and no expert analysis they can usually be prepared very quickly and very cheaply. (I can, for example, usually get reports like these done within a week or two of being hired, although you shouldn't assume this is typical of all lay assessors.)

These sorts of reports are generally only appropriate when:

1. the parents understand that the views of the child are only one part of the whole picture;
2. the parents understand that the report is not an expert report;
3. a full custody and access report isn't necessary;
4. the child is more than eight or nine years old; and,
5. the judge wants to hear from the child but does not want to interview the child him- or herself.

These reports will not be appropriate where the child is not capable of expressing his or her preferences or where there are allegations of parental alienation.

IV. Types of Custody Order

Custody orders fall into one of two categories: they are either interim orders, made after an action has started but before it has concluded, or they are final orders made following a settlement or a trial. In general, any kind of order that can be made on a final basis can also be made on an interim basis.

A. Interim Orders

Interim orders are usually intended to provide a rough structure to the legal relationship between the parties and their children which will last until the matter is finally resolved at trial. The result at trial may be the same or different than the situation in the interim.

An application for interim custody is not meant to be a final determination of the issue, and, while the same considerations are applied in making an interim order as they are in a final order, a greater emphasis is placed on the child's immediate and short-term best interests. As a result, the courts will often preserve the existing situation, the status quo, and leave the child with whichever parent he or she is living with, rather than disturb the child and require a change of homes. In other words, if the father left the family home when the parties separated, leaving the children with their mother, the court will likely allow that situation to stand until the final decision is made. It can be difficult to change the children's living circumstances once a stable arrangment has been reached, and both parents should be very careful and consider their options carefully if things come to the point where one parent has to move out of the family home.

Interim orders can be changed. Generally, a parent will apply to vary an interim order where there has been an unexpected change in circumstances which has adversely affected the best interests of the child. Where there has not been such a change in circumstances, the interim order will usually stay as it was.

B. Sole Custody

A parent with sole custody has the child's primary residence and is responsible for the child on a day-to-day basis.

For some couples, sole custody is ideal. In such cases, one parent, typically the parent who was not the children's primary caregiver during the relationship, has less of a personal interest in being with the children all of the time than the other parent, and is quite content to resign custody. In other cases, the parents live too far apart from each other, or have such a poor relationship with each other, that any other order wouldn't work.

For other couples, sole custody is necessary to protect the children from the conflict between their parents. Where emotions run too high, and the parties find themselves simply incapable of communicating with each other without fighting and exchanging insults, sole custody may be necessary to shield children from their parents' conflict and give them as much stability as possible.

C. Joint Custody

An order for joint custody gives each parent custody of the children. In such cases the parents need to work together and co-operate in raising the children. The children may still spend more time — sometimes a lot more time — at one parent's home than the other, but both parents will be the children's joint custodians and their joint guardians.

It used to be the case that where the parties had trouble communicating with one another, the courts would automatically make an order for sole custody. This predispostion has pretty much disappeared, and the courts will usually allow even highly conflicted parents to have joint custody, as long as they share a fairly common idea of how the children should be brought up and are mature enough to keep their disputes between themselves. In a 1996 case from our Court of Appeal, Robinson v. Filyk, the court said that there should be no presumptions in favour of or opposed to joint custody, nor any presumption that joint custody should be allowed only where the parents are able to get along and communicate with each other:

"It is now clear that legal and factual presumptions have no place in an enquiry into the best interests of a child, however much predictive value they may have. The Supreme Court of Canada has stated absolutely clearly that such presumptions detract from the individual justice to which every child is entitled."

Whether parents have joint or sole custody depends more on their relationship and approaches to parenting than it does on how much time each parent has with the children. A parent can see the children only on every other weekend, or live in another province altogether, and still have joint custody with the other parent.

D. Shared Custody

Shared custody is a kind of joint custody in which the children spend an equal or almost equal amount of time with each parent. Where parents have shared custody, the children will usually spend a certain amount of time with one parent at that home and a similar amount of time with the other parent at their home. Shared custody can require that the children switch homes every three or four days, every other week, every two weeks, or every month; the amount of time the children spend with each parent will depend on the circumstances of each case, the age of the children, the parents' work schedules and the schedules of the children's activities.

In many ways, this is an ideal form of custody since the children spend an equal amount of time with each paren, and have an equal opportunity to bond with each parent. Shared custody usually requires that:

1. the parents live fairly close to one another;
2. the parents have adequate communication skills with one another;
3. both parents are able to put the children's needs ahead of their own;
4. the children are old enough to be able to tolerate the disruption of living in two different homes; and,
5. the arrangement is in the best interests of the children.

Of course, there are downsides to this sort of order. The strain of communicating so frequently with the other spouse can be a bit of a burden; it can be costly to maintain a full set of clothing, shoes, toiletries and supplies at each house; and, no matter what, the children are still moving from one house to another each week.

E. Split Custody

In this type of custody, one or more of the children live with different parents. Each parent may have sole custody of those children who are in his or her care or the parents may have joint custody of all of the children, regardless of where the children live. This is a fairly drastic form of order as it requires the separation of siblings and there is a risk that they may grow apart from each other as time passes.

These sorts of orders are only made where there is clear evidence that it is in the best interests of all of the children to fracture the family unit, such as when the siblings are constantly fighting or at each other's throats, or when one child has a particular attachment to a parent not wholly shared by the other children. In such cases, a s. 15 report confirming that the children ought to be split apart is essential.

V. Who Can Apply for Custody

In general, anyone who has a connection to a child may apply for custody of the child. Normally, the people who apply for custody are the biological parents or legal guardians of a child, but grandparents or other adults involved with the child may also apply for custody if they wish.

A. The Divorce Act

According to s. 16(1) and (4) of the Divorce Act any person or persons can be granted custody of a child. Where that person is not a spouse or a former spouse, however, her or she must apply to the court under s. 16(3) for permission to apply for a custody order. The court may grant custody to non-parents.

B. The Family Relations Act

According to s. 35(1) and (1.1) of the Family Relations Act any person or persons can be granted custody of a child, including:

1. a natural parent;
2. a grandparent of the child;
3. other relatives of the child; and,
4. people who are not related to the child.

C. Applications by People Other than Parents

While both acts make it clear that anyone can apply for the custody of a child, the court will presume that the biological and step-parents of a child are entitled to raise their own children unless there is a clear reason why this should not be the case. Again, as in all matters touching on children, the court's decision will rest wholly on what is in the best interests of the child, not the interests of the child's parents or those of third parties.

The general common law rules dealing with competing custody claims between a non-parent and a parent are these.

• The natural parents of a child have a prima facie right to the custody of that child, except where they have abandoned the child or demonstrated a serious lack of fitness to have custody, such as in the cases of abuse or neglect.
• Custody should only be given to third parties when the natural parents are unwilling, unable or unfit to care for the child.
• The wishes of the birth parents should be heeded unless there is a serious reason why they shouldn't be, as in the case of a threat to the child's health and safety.

The common theme here is that there must be a real and substantial concern about the fitness of the natural parents' ability to care for a child before that child is taken away and given to a third party.

More information about the interests grandparents and other non-parents may have in a child is set out in the first chapter of this section.