Custody: Who will the Children Live With?

Divorce is a difficult decision to make. When children are involved, the emotions can get involved very easily.

What are some questions that parents should ask themselves when they are separating and what issues need to be resolved prior to instituting Motions before the court for custody?

Firstly we need to decide where the request for custody shall be presented. Jurisdiction is very important as it determines which courthouse will be hearing the case.

Normally in family matters and according to article 70 of our Civil Code of Quebec (hereafter CCQ), the chosen court house is where the parties are both domiciled and reside habitually or the domicile of either of the parties.

If a judgment had previously been rendered in the matter and the parties are no longer residing in the same jurisdiction, a Motion can be brought before a court of the domicile of either party according to article 70.1 of the CCQ.

Once the jurisdiction has been established, it is time to discuss the actual issue of custody and where the children will be primarily residing.

There are different types of custody arrangements that can be envisioned and if the parties are on an amicable basis, many different solutions and alternatives can be put into place, the whole provided that the best interest of the children is always kept in mind.

If an agreement is not possible, the court will decide this issue in the best interest of the children, taking into account the parental capacities of the parties, their involvement with the children and also the level of communication between the parties. It is important to keep in mind that when awarding custody, the court places attention on which of the parents will make an effort to maintain contact between the child and the other parent.

The basic types of custody are

  • sole custody
  • shared custody and
  • sole custody to one parent and prolonged access rights to the other parent.

Prior to discussing custody, it is important to note that regardless of the custody arrangement, both parents continue to jointly exercise parental authority as per article 600 of the CCQ.

Parental authority normally refers to the process of making joint decisions when it pertains to major issues such as health, religion and education. All daily decisions relating to the child are taken by the parent who has the care of the child without the interference of the other parent, save and except, of course, in the event that the welfare and interest of the child are at stake.

In the case of sole custody, the child resides primarily with one parent and the other parent sees the child 20% or less of the time. All daily decisions for the child are made and taken by the custodial parent but all major decisions are made and taken in conjunction with the other parent. It is important to note that neither the mother nor the father is privileged to be awarded sole custody of a child. The best interest of the child remains at the heart of the issue.

Shared custody entails that the child lives with both parents at least 40% of the time. Shared custody is no longer an exceptional arrangement and must be seriously considered when the parental capacities of the parties are equal.

It is either subsequent to an agreement by the parties or imposed upon them by the court.

There have been numerous court decisions rendered which detail the criteria used to determine whether joint custody is a viable custody arrangement.

The Quebec Courts have indicated that joint custody is possible when the following is considered:

• the age of the child;
• the parental capacities of the parties;
• the availability of the parties;
• the education, moral and spiritual values of both parties are similar;
• the capacity to maintain a stable environment for the child;
• the capacity of the parents to communicate with each other without any conflict;
• the proximity of the residences of the parents;
• the absence of any form of parental alienation and the demonstration of the importance of maintaining a relationship with the other parent;
• the desire and wishes of the child.

In the case of sole custody to one parent with prolonged access rights to the other parent, this entails that the child spends between 20-40% of the time with the non-custodial parent. This can also be referred to as extended visitation periods and can be a custody arrangement put into place in order to slowly integrate towards a more standard shared custody arrangement for the benefit of the minor child.

It is of importance to note that in making decisions with regards to custody and access rights, the age of the child and maturity level can play a factor in determining the arrangement.

In some cases an attorney can be appointed to represent the interests of the child before the court in the event of a dispute between the parents. This allows the child to speak with a neutral third party attorney. Not every child is eligible to be represented as it is dependent upon his age and maturity level. There is a tendency to award the opportunity to express their desires as of the age of 10 years of age.

Lastly, it is very important that when speaking to a child about divorce and where they shall be living, that they understand they have 2 homes and they are going to spend time with both parents and to assure them that despite changes that will be occurring, they will still have both their parents available for them.

For more information on custodial arrangements or any other aspect in this article, please do not hesitate to communicate with our office. 514-499-2010

Ofelia Lamanna, Attorney
Azran & Associés Avocats Inc.

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