Child Custody and Changing Child Custody Order

During a separation or divorce, children are generally the biggest concern for parents. When it comes to child custody, Canadian courts focus on one main thing: the best interests of the children, with reference to the condition, means, and needs of each particular child. This takes into account their age, capacity, needs, and maturity. 

It should be noted that laws concerning custody and access under the Divorce Act have changed, and one change has been to replace the word “custody” with neutral terminology – therefore, under the new laws effective March 1, 2021, orders for “custody” will refer to decision-making (how decisions about your child are to be made) and parenting time (parenting schedule).

  • For existing court orders and agreements, you can continue to rely on your existing court order after the new law comes into force. Changes in the law are not a reason for a change to your existing order.
  • If you choose to apply for a new court order after the new rules come into force, the new Divorce Act rules will apply. 
  • In the case where you are changing your existing court order or agreement after the changes are in effect, the new Divorce Act rules will apply.

What is Child Custody?

Though there is no single, precise definition of “custody”, it generally refers to the whole collection of legal powers of parents over their children, including the power to make decisions regarding religion, education, health care, and so on. In other words, it is the legal authority to make important decisions regarding your children’s lives. Custody does not necessarily equate to where the children reside or how much time a child spends with each parent.

In some situations, child custody can be decided amicably between parents at the time of separation, in which case they should properly document these agreements in a legally bound separation agreement. However, if an amicable arrangement is not agreed upon, the courts will then decide who gets custody and what type it will be.

Types of Child Custody?

Sole custody: also known as full custody, this arrangement is one where one parent is solely responsible for making all decisions affecting the child. The other parent would be entitled to be provided with information relating to matters of the child’s life. Sole custody is often preferred in cases where, for instance, the other parent has never been involved in a child’s life; is unable to parent; in cases of domestic abuse/violence; or where a parent must leave the country permanently.

Joint Custody: also known as joint legal custody, this means that both parents make major decisions about their children’s lives together. If there is disagreement on an issue, parents may turn to mediation or a parenting coordinator for assistance. Courts usually award this type of custody to parents who can cooperate on parenting matters.

Shared Custody: also known as joint physical custody, this arrangement occurs when both parents have joint custody of the children and each parent spends at least 40% of the time with their children.

Split Custody: in more complicated situations, one parent may have custody of some children while the other parent has custody of the remaining children. Courts generally try to avoid separating siblings; however, in some cases, older children may choose to live with different parents.

Changing My Custody Order

Before attempting to change a court order, first, refer to your court order to see what it says you must do to implement changes – many times, it may say that you must try mediation or alternative dispute resolution before going to court. After completing this step, if you and your partner still cannot agree, you may have to go to court and bring a motion to change a custody or parenting order.

To make a variation to a Divorce Act order, parties are required to show that there has been an important change in their life or that of their child. This is referred to as a “material change in circumstances”, and can include, for instance, changes to the child’s living arrangements; changes to the child’s medical or educational needs; or either parent would like to move long-distance. These changes must materially affect your child or the ability of you/your partner to meet the needs of your child, and the change must be something that could not have been predicted at the time the original order was made. This last step is usually the hardest step to meet, as changes to life circumstances, albeit novel, are often still reasonably or foreseeable and thus do not always represent a change. Please note that the recent changes to the Divorce Act are not considered a change in circumstances. Thus, the threshold for establishing a material change is a high one.

If there is agreement on certain changes to the parenting plan or the separation agreement, you can make a new agreement addressing these changes. Going to court can be a difficult, time-consuming process, but may be necessary for deciding your issues. You can speak to a lawyer who can explain the steps indicated in your order/agreement for changes, as well as if there are facts that can make a strong case for changing or ending an order.

If you wish to understand more about the variation of orders or wish to speak with a professional for advice and possibly representation, do not hesitate to contact us, and our specialist Family Lawyers can discuss your matter in more detail over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here.

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