Common-law relationships in Canada are on the rise among couples. One of the main advantages of this arrangement compared to a traditional marriage is that that when the common-law couple breaks up, there is no legal action required, no divorce process. If you are going through a divorce and need help with child custody, consult an experienced lawyer today.
In Canada, all parents—married or not—are entitled to seek custody and access of their children. What does that mean for common-law couples? The implications vary depending on jurisdiction.
In Ontario, two people are considered to be in a common-law relationship if:
- They have lived together as a couple for at least 3 years, or
- They have a child together and are in a relationship of “some permanence” for any length of time
The Children’s Law Reform Act
The Children’s Law Reform Act is the Ontario legislation that governs child custody and access issues for common law couples. When it comes to the terminology, it is important to keep in mind that custody is different from access from a legal standpoint. “Custody” refers to a parent’s right to make decisions for his or her child on fundamental aspects of the child’s life, such as health, education and well-being. On the other hand, “access” refers to a parent’s right to visit the child, to make inquiries and receive information about the child’s well-being and upbringing.
There are 4 general types of custody:
- In sole custody, only one parent has the right to make important decisions on the child’s behalf. However, the other parent might have access and visitation rights. The other parent may also be able to express an opinion on important issues, but the custodial parent makes all final decisions.
- In joint legal custody, both parents have equal responsibility in decision-making and require each other’s consent. This arrangement is ideal if parents can communicate effectively and set aside conflicts to care for their children. Joint legal custody is possible even if the child lives primarily with one parent.
- In joint physical custody (or shared custody), both parents spend at least 40% of their time with their children. Shared custody is simply a type of access arrangement. This arrangement is possible even if one parent has sole custody of the child.
- In split custody, one parent has sole custody over some of the children and the other parent has sole custody of the other children (i.e. daughters with mothers, sons with fathers).
Child Custody and Access Arrangements
A child custody agreement is a document that outlines the living arrangements and visitation schedules for a child. A well-executed agreement is more likely to be binding and enforceable if the matter ends up in court.
The courts have a lot of discretion in child custody cases, but all decisions share a focal point: the best interest of the child. The Children’s Law Reform Act provides specific guidance as to what a court must consider in assessing the best interest of the child, and they include the following:
- The love, affection and emotional ties between the child and,
- Each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
- Other members of the child’s family who reside with the child, and
- Persons involved in the child’s care and upbringing
- The child’s views and preferences should be taken into account if possible.
- The length of time the child has lived in a stable home environment
- The ability and willingness of each person applying for custody of the child to provide the child with what they need.
- The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing
- The child will live in a family unit that is permanent and stable.
- The ability of each person applying for custody of or access to the child to act as a parent
- Blood or adoption determines a child’s legal relationship to their parents.
If you are going to be involved in a child custody case, it is important to seek legal advice from an experienced divorce lawyer in Mississauga at Tailor Law.
If you are in a common law relationship and have questions about child custody and access, we encourage you to contact Tailor Law and book a free initial consultation with one of our family lawyers in Mississauga.