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Difference Between Joint Custody and Sole Custody

By February 11, 2019 No Comments

Child custody is one of the most challenging issues to cooperate on when parents separate or divorce. It is also often misunderstood.

Legally, “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. Custody is different from “access” which refers to a parent’s right to visit the child, to make inquiries and receive information about the child’s well-being and upbringing.

In Canada, all parents are entitled to seek custody and access of their children, whether or not they are married or live together. Federal legislation (the Divorce Act) applies to married parents pursuing a divorce. Provincial legislation (in Ontario, the Children’s Law Reform Act) applies to parents who are not married or who are not pursuing a divorce.

There are 4 general types of child custody:

  1. 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 can also express an opinion on important issues, but the custodial parent makes all final decisions.
  2. In joint legal custody, both parents have equal responsibility in decision-making and require each other’s consent. This arrangement is ideal if parents are able to communicate effectively with one another and are able to set aside conflicts in order to care for their children. Joint legal custody is possible even if the child resides with one parent only.  
  3. In joint physical custody (or shared custody), both parents spend at least 40% of their time with their children. Shared custody should not be confused with joint custody. Shared custody is simply a type of access arrangement. This arrangement is possible even if one parent has sole custody of the child.
  4. 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). This arrangement is rarely enforced because courts are reluctant to separate younger siblings. Split custody is more common for children who are old enough to express an opinion about which parent they want to live with.  

It is important to keep in mind that custody and access arrangements do not have to fit neatly into the above categories and can be tailored to individual circumstances. In some cases, parents have been able to compromise and execute a “joint” agreement with the help of qualified professionals. A child custody agreement is similar to a parenting plan and can deal with issues like living arrangements, visitation schedules, pick-ups and drop-offs, and many other important aspects of the child’s development. 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, including 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, if they can reasonably be ascertained
  • 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 guidance and education, the necessaries of life and any special needs of the child
  • The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing
  • The permanent and stability of the family unit with which it is proposed that the child will live
  • The ability of each person applying for custody of or access to the child to act as a parent
  • The relationship by blood or through an adoption order between the child and each person who is a party to the application

Pre-nuptial or separation agreements that deal with child custody and access are not iron-clad. A court can still look at whether the agreement is consistent with the “best interest of the child” principle. If the court decides that a given agreement is not in the best interest of the child, then it has the authority to change it and make any order that is consistent with the principle.

Courts may also rely on interventions by social workers, counsellors and other professionals, especially where a parent has a history of substance abuse, domestic violence or parental alienation. Therefore, child custody and access cases can get complicated very fast and drag on at the same time. It is important to seek legal advice if you are confronted with a court application that is going to impact custody or access rights to your child, or if you wish to make such an application to restrict custody or access of the other parent.

If you face a child custody or access issue and want to know your legal options, we encourage you to contact Tailor Law immediately to arrange a free and confidential consultation with one of our lawyers.

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