Child Custody & Schedule

Child custody should not be confused with a child’s schedule, or with whom a child is residing. Child custody is about decision-making responsibilities for the child or children. The spouse who has custody of a child or children makes decisions about their:

personal care
education and schooling
moral instruction (what is right, what is wrong)
religious and cultural instruction
medical care

When parents are living together—married or unmarried—they make decisions together about their children, or are basically in a status of “joint custody.” This means either can be involved in decision-making, and, for example, a school permission form would require a signature of only one of the parents. However, the situation can change when parents separate; child custody becomes a problem.

Our governments, federal and provincial, retain the ultimate decision about child custody. Child custody arrangements are only imposed by the court if the parties cannot come to their own arrangement.

The Divorce Act is federal legislation that applies if, and only if, people are married.

If they are not married, provincial legislation applies, and in Ontario, this is the Children’s Law Reform Act. This legislation governs the issues surrounding child custody from the point of view of the “best interests of the child.”

“The Best Interests of the Child” is the prevailing principle of family law in Canada.

The majority of parents resolve child custody issues without the court imposing its views. This is the preferred choice, if both parties are reasonable and realistic. The end result of these discussions, either through negotiation or court imposition, may involve a variety of options: both parents involved in major decisions (“joint custody”) unless there is good reason to conclude that one parent is unreliable, or not a good decision-maker, or if there is no ability for the parents to be able to coordinate decision-making.

Even in circumstances where the parents cannot agree, there can be a concept put forward of “parallel parenting” in which each parent is a decision-maker when the child is with that parent.

There can be situations where one parent is seeking “sole custody.” Sole custody is when that parent is seeking to be the only decision-maker. When the other parent does not agree to allow sole custody, there must be a careful and detailed review and assessment of all of the background facts to justify this result. The ultimate decision in a conflict of child custody is decided by the “best interests of the child” principle.

Parenting Plans and Child Custody

Parenting plans are a major factor in the resolution of child custody. For example, there are situations where a parent moves away (typically for work), and thus the child is really being raised by the one parent only. Even in this situation, a process for decision-making that relates to major decisions is possible with Skype, or electronic communication, or Apple’s Facetime, which allow for a lot more involvement with children, even though there is a physical distance between the child and parent.

Similarly, professionals such as dentists or doctors, may involve both parents in the discussions through these Skype and similar means, even if parents are not in the same room. Thus, parenting plans are a critical factor in looking at issues that relate to” joint custody” or “sole custody.”

Types of Parenting Arrangements for Child Schedule

Parenting arrangements, involve looking at the issue of “custody,” (decision-making), and the schedule of the child or children. There are various ways that a schedule can be described: “shared parenting” (approximately half the time with each parent, looked at from a monthly or annual point of view); or “primary residence” (child resides more than approximately 60% of the time with one parent and the remaining time with the other parent).

There are many aspects of flexibility that can be brought into the child schedule: “week about” (child moving back and forth from one to the other on a weekly basis); “alternating weekends (child with each parent every other weekend); “back and forth.” (child spending a couple of days and then to the other); or “open schedule” (nothing in detail planned except the child goes back and forth, often for older children and their desires become the most significant factor in the plans).

There can also be special attention paid to summer holidays, school breaks, children’s birthdays, fathers and mothers day, or other special cultural or religious occasions.

To assist in understanding the various parenting plans, family mediators, may assist the parents in conceptualizing what would be the best plan for children and parents.

Changing Custody and/or Changing Schedule

The court system, as instructed by the federal and the provincial government that looks that custody and schedule from the point of view of the “best interests of the child,” is prepared to look at “changes in circumstances” which are significant enough to alter what has been the previous parenting plan or schedule.

The professionals, including family lawyers and family mediators, are able to assist parents, and predict when a court would make a change, even over the objection of one party or the other. They can assist the parties in changing the existing agreements or court orders, using all of the tools that are available.

The court can ask for other professional assistance, such as “child assessments,” with “recommendations” so that there are detailed options available for consideration. Parties can also agree to have this type of assessment completed, which can be paid for privately, or if people qualify, it may be that the Office of the Children’s Lawyer, is prepared to give the parents and the court their views and recommendations.

A family mediator can be of assistance in coordinating this process, and keeping the costs reduced for the parties, if both parties agree. A court may also recommend to parents that they consider a family mediation approach for resolution of issues.