Custody, Joint Custody, Shared Custody – a Primer

For people separating from their spouse, there are perhaps no issues more difficult to address than the legal issues involving custody and access to children. The terms ‘custody’ and ‘access’, however, are no longer used in family courts in Ontario. The term custody has been replaced by the term ‘decision-making’ and the term access has been replaced by the phrase ‘parenting time’. This change was made due to the feeling that the term ‘custody’ somehow implied that the parent who was awarded custody of the child or children was perhaps the ‘better’ parent.

That was not always the case however. Often, the parent awarded ‘custody’ was the parent who was the primary caregiver to the children during the relationship. Accordingly, it was felt that the stigma that may have been ascribed, in the minds of some, to the parent who only had ‘access’ to the children would therefore be avoided. I am not entirely sure that this change will be entirely satisfactory. Nevertheless, the term custody has been, as mentioned above, replaced by the phrase ‘decision-making’. For the purposes of this discussion, it may be more convenient to use the old terms of custody and access as those are the terms that most people are familiar with.

The term ‘custody’ (now ‘decision-making’) was used to refer to the parent who would be clothed with the authority to make the major decisions that were required in the life of the child or children. Major decisions included the authority to make decisions in respect of religion, education and medical treatment. The primary residence of the child or children would be with the parent who was awarded ‘custody’. The other parent would exercise ‘access’ to the children, usually every second week-end and other times in addition.

JOINT CUSTODY

The term ‘joint custody’ would refer to the circumstance where the parties could equally participate in making those major decisions. Accordingly, a custodial regime where joint custody would be exercised was one where there was an absence of conflict between the two parents and where the parents could set aside their personal differences to make decisions together about what was in the best interests of their children. Joint custody of children was, obviously, not workable where there was a high degree of conflict between the parents. A court would not order joint custody in this set of circumstances. Nevertheless, even in a joint custody regime, the child or children would have their primary residence with one of the parents and, as above, the other parent would enjoy ‘access’. However, in certain circumstances, the parents would ‘share’ custody of the children as described below.

SHARED CUSTODY

A ‘shared custody’ regime was one where, typically, the children would live with both parents on ‘week about’ basis. Usually, this meant that the children would live with mom for a week and, at the end of that week, they would move to dad’s house and spend that week with dad. Decision-making would often be on the same basis as that of a ‘joint custody’ regime. That is to say, the major decisions required to be made in the lives of the children would be made cooperatively by both parents. Day-to-day decision-making would be made by the parent where the child resided for that week. There were circumstances where shared custody was not practical. In other words, where one parent moved to a location some distance from the former family home would render a shared custody regime, in practical terms, unworkable.

Grant Edward Rayner*

If you are separating from your spouse in the Upper St. John River Valley of New Brunswick, call Langdon Law at 506.497.2560 for a consultation. Offices in Woodstock, Hartland and Florenceville-Bristol.

*Grant is a member of the Law Society of Ontario. He has permission from the Law Society of New Brunswick to practice as a visiting lawyer with the firm Langdon Law pending the transfer of his membership with the Law Society in Ontario to the Law Society of New Brunswick.