Main principles used to determine child custody
Do you have questions about custody orders and changes of custody during the COVID-19 pandemic? See our section: « Custody Orders and Changes of Custody During the Pandemic »
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.
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 and family environment, 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.
Among other things, the Divorce Act stipulates that the judge’s decision must promote as much contact between the children and each spouse as is consistent with the best interests of the children. This means that the judge must determine the extent to which the parent who has custody is willing to facilitate contact with the other parent and other family members (such as grandparents), whom the child should continue to see.
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
Since 13 June 2019, the parties in a family law case must attest to whether or not they are subject to conditions regarding another party or their child under an order, undertaking or recognizance provided for in the Criminal Code. Any party subject to such conditions must provide the particulars in a notice filed with the court office and provide evidence of those conditions; the same applies if the conditions are replaced, varied or lifted in the course of proceedings.
The new rules stem from the Government Action Plan on Domestic Violence, in which the MJQ made an undertaking to study the possibility of amending the Regulation of the Superior Court of Québec in family matters.
- Making Plans - A guide to parenting arrangements after separation or divorce (Department of Justice / Canada)