Main principles used to determine child custody
A judge rendering a decision on child custody takes into account the emotional state of the spouses and their financial situation. The judge may, for this purpose, hear a specialist such as a:
- social worker.
Child's right to an ongoing relationship with both parents.
In order to make the decision that will best respect that right, the judge will consider the following elements:
When one parent has been given custody of a child, both parents must still consult together before any important decisions are made, such as those concerning:
- the choice of a school;
- medical care and
- place of residence.
Decisions concerning everyday life may be made by the parent responsible for the child at that particular time. Parents exercise their authority without violence.
All decisions concerning a child must be made in the child’s interest and in compliance with the child’s rights. Before making a decision, the child’s moral, intellectual, emotional and physical needs must be taken into account, along with the child’s age, health, personality, family environment, including the presence of family violence and domestic violence, and other aspects of the child’s situation..
A court may, when the interest of a child is involved, order a psychosocial evaluation to shed light on the question under examination.
In Québec, no custody model is given preference by the courts. Each case is unique, and the only criterion taken into account before a court makes its decision is the interest of the child. In the decision, the court will try to ensure that the child’s links with both parents are maintained as far as possible, once again in the child’s interest. Unless there is proof to the contrary, the court assumes that both parents have adequate parenting abilities.
There are three types of custody :
- sole custody, where one parents assumes more than 80% (292 days) of custody time for the child;
- sole custody with visiting and prolonged outing rights, where the parent who does not have custody assumes more than 20% (73 days) of custody time, but less than 40% (146 days);
- shared custody, where each parent assumes between 40% (146 days) and 60% (219 days) of custody time for the child.
There are many different ways to organize the time a child lives with each parent. Here are some examples:
Parents may agree to joint custody. In this case, it is up to them to establish the terms and conditions, particularly with respect to outings or visits, depending on their availability and the circumstances. This, of course, involves speaking together frequently and making joint decisions.
If this agreement is not ratified by the court, there is no legal way to enforce it if one of the spouses does not respect it.
You can authorize the grandparents to maintain or develop a personal relationship with your child if you believe this is in the child’s best interest.
The child’s consent is required if aged 10 or over, unless unable to express his or her will.
You may authorize your former spouse to maintain a personal relationship with your child under the same conditions AND if he or she is a significant person for your child.
Personal relationships can be maintained by any appropriate means. Physical presence is not required.
A matter may be taken to court in the following situations:
- There is a disagreement between the parties;
- A child aged 10 to 13 does not consent to the maintenance or development of the personal relationships.
Child aged 14 or over
The wishes of a child aged 14 or over must be respected with regard to personal relationships with the grandparents or the parent’s former spouse. Consequently, no agreement is possible if a child aged 14 or over refuses. In addition, the child, as of age 14, can terminate the agreement without further formality, whether or not a court order has been made.
Order prior to June 8, 2022 (effective date of the new Article 611 of the Civil Code of Québec)
If the terms of the personal relationships between the child and the grandparents were determined by the court before June 8, 2022, they are subject to the child’s consent as soon as the child turns 14, at which time the child can terminate them without further formality. The matter does not need to be taken to court again.
With the court's permission, a person other than the father or mother may also apply for custody of a child, or access rights.
Regulation to amend the Regulation of the Superior Court of Québec in family matters
The parties in a family law case must attest to whether or not they are subject to:
• A civil protection order under section 509 of the Code of Civil Procedure or a request related to such an order;
• An order, application, agreement or decision related to youth protection;
• An order, indictment, undertaking or recognizance related to a criminal matter.
Parties who fall into any of the above situations must file a notice with the court office and, if applicable, attach documentary evidence. The same applies if the situation changes in the course of proceedings.
- Making Plans - A guide to parenting arrangements after separation or divorce (Department of Justice / Canada)
- Child custody: choosing your parenting schedule (JuridiQC)
- Choosing a school after a divorce or separation (JuridiQC)
- Health decisions regarding children: Who decides after a separation or divorce? (JuridiQC)
- File with the DYP: the impacts on separation or divorce proceedings (JuridiQC)