Custody issues arise where there are children of a relationship, regardless of marriage. Custody is, essentially, the entitlement to make decisions related to children on matters such as education, medical treatment, religion, residence and extra-curricular activities. Generally, prior to separation, both spouses are considered to be equally entitled to custody of the children of their relationship. When parents live separate and apart, however, and the children live with one of the parents with the consent or acquiescence of the other parent, the custody rights of the parent with whom the children do not live are suspended until a separation agreement or court order otherwise confirms the rights of custody. It is, accordingly, very important that rights of custody be addressed and resolved prior to one of the spouses leaving the matrimonial home on the breakdown of a relationship. Ideally, any agreement between separated spouses as to the terms on which one of them will leave the matrimonial home will be reduced to writing, and be signed by each of the spouses before witnesses.

Where separated spouses are unsuccessful in resolving between themselves outstanding issues related to custody, both lawyers and courts will consider the best interests of the children, having regard to factors such as:

1. the love, affection and emotional ties between the children and each person seeking custody, as well as other involved persons;

2. the children’s views and preferences, if they can be reasonably ascertained;

3. the length of time the children have lived in a stable home environment;

4. the ability of each person seeking custody or access to act as a parent. In assessing a person’s ability to act as a parent, the court must consider whether a person has at any time committed violence against his/her spouse or child, against his/her child’s parent, or against another member of the person’s household;

5. the ability and willingness of each person seeking custody to provide the children with guidance, education and the necessities of life and to meet any special needs of the children;

6. any plans proposed for the children’s care and upbringing;

7. the permanence and stability of the family unit with which it is proposed that the children will live; and

8. the relationship, by blood or through an adoption order, between the children and each person seeking custody.

Some frequent arrangements of custody between separated spouses are:

1. Sole Custody – The parent having custody of the children is solely entitled to make decisions related to them. The parent not having custody is entitled to have input into decisions and to be provided with information related to the children. There is no assurance, however, that input will be reflected in any decisions ultimately made. The children will live with the parent who has custody. Usually, the parent not having custody, the “access” parent, will have defined rights of access to the children, with varying degrees of detail as to timing, depending upon the family;

2. Joint Custody – Each of the parents is equally entitled to make decisions related to the children. Usually, the children will have a primary residence with one of the parents, and a secondary residence with the other parent. The terms of “access” or visitation are likely to be specifically defined;

3. Shared Custody – Increasingly, parents are attempting to work out shared parenting plans. Often, these arrangements will confirm that the children will divide relatively equal time between the homes of the separated parents. Usually, both parents will make decisions related to the children. Access may continue to be relevant. For example, a parent may wish to have mid-week access during the week in which the children are residing with the other parent. To be successful, this arrangement may require more flexibility on the part of the parents than other arrangements of custody. In addition, ideally, the separated parents would continue to reside geographically close to each other, in order that the children can easily maintain their school, social and neighbourhood connections; and

4. Split Custody – The separated parents divide the children between them, with one parent having sole custody of certain of the children and the other parent having sole custody of the other children. The children as divided will then have separate primary residences. The parent not having custody of certain children may have rights of access. This kind of arrangement of custody is less common than the other arrangements referred to above.

Because custody is determined by reference to the best interests of the children, an arrangement of custody is always subject to change, as circumstances change. Where a material change in circumstances occurs, that affects or is likely to affect the best interests of the children, an existing arrangement of custody may be varied.

Due to the particular demands involved in resolving issues related to children, which are often non-legal in nature, a non-legal specialist may become involved in resolving custody disputes. The specialist may be a social worker, psychologist or psychiatrist. This specialist may become involved in the capacity of mediator or assessor. Typically, a mediator assists separated spouses in resolving their disputes by negotiated agreement, often with minimal legal involvement, taking into consideration the particular dynamics of the family both prior to and subsequent to the breakdown of the relationship. In contrast, an assessor has the authority to make recommendations as to what he or she considers to be the custody arrangement in the best interests of the children. Not surprisingly, the manner in which a specialist becomes involved is very connected to the degree of acrimony and/or the nature and seriousness of the outstanding issues between the separated spouses.

Sometimes, the court appoints a legal representative for children. Often, a legal representative of the children is a representative of the Office of the Children’s Lawyer, an office of the provincial government. This Office provides a number of services, which are of both a social work and legal nature.