Child Custody and Changing Child Custody Order

Child Custody and Changing Child Custody Order

During a separation or divorce, children are generally the biggest concern for parents. The Canadian government’s best interests in child custody cases are judged on the condition, means, and needs of children. This takes into account their age, capacity, needs, and maturity. 

Under the new laws, orders for custody will refer to parenting time (parenting schedule) and decisions about your child’s future.

  • 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?

It refers to the whole collection of powers a parent has over their child, including those relating to religion, education, health and other issues. 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.

If a parent cannot agree with the other, they will have to go through the courts and let them decide.

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

If you and your partner disagree on a custody or parenting order, you may need to go to court to change it. Many times, the court will say that you must try mediation or alternative dispute resolution before going to court. If you cannot agree, then you may have to bring a motion to change the order in court.

A variation to a divorce order can only be made if there has been a “material change in circumstances”. This can include changes to the child’s living arrangements, medical or educational needs, or long-distance requests from either parent. The threshold for establishing a material change is high.

Going to court can be a difficult, time-consuming process, but may be necessary. If there is agreement on certain changes to the parenting plan or the separation agreement, you can make a new agreement addressing these changes. A lawyer can explain the steps indicated in your order/agreement for changes.

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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