Parenting (married spouses) – Family Law Lawyers

You and your spouse love your children. That doesn’t change because your relationship with each other has broken down.

It’s important for your children that you and your spouse still work together as co-parents.

During your relationship, you and your spouse were used to sharing parenting tasks and making parenting decisions in a certain way. Your parenting roles and responsibilities may change after separation. This can be difficult to navigate.

You and your spouse can agree on the considerations that impact your children. If you cannot agree, a Judge or arbitrator will decide, based on the law and the best interests of your children.

The Courts and lawyers use legal terms and concepts to help structure parenting arrangements and resolve parenting issues.

The Divorce Act is federal legislation that applies to married couples. The Family Law Act is provincial legislation that also applies to married couples. We usually apply the Divorce Act concepts and terms when talking about parenting in married families.

For a better understanding, below are some common legal parenting concepts that may apply to you:

Custody is about 2 things

“Custody” is a word in the Divorce Act that refers to two concepts:

Who makes the major decisions related to the children; and
Where the children live.

Major decisions often include non-emergency medical or/dental care, education, religion, and extra-curricular activities. Generally, you and your spouse make these major decisions together.

Joint custody means shared major decision-making

Joint custody is the most common arrangement. In this arrangement, you and your spouse have the legal responsibility to participate equally in major decisions about the children. If you disagree with each other, these issues can be resolved in or out of Court.

You and your spouse can split major decision-making. For example, you may choose your children’s doctors and dentist and your spouse may decide where they go to school.

Sole custody means that one parent only makes major decisions.

The other parent does not have the right to have input into decisions affecting the children, although they often have the right to be informed. Sole custody is uncommon and is usually only seen in high conflict, absent parent, or extreme situations.

Major decision making can be reviewed by the Court, if there is a change in circumstances that meets the legal threshold.

There is a difference between major and day-to-day decisions regarding children.

Day-to-day parenting decisions, like what your children have for dinner, are usually made by the parent caring for your children at the particular time.

The second part to custody is where the children live.

For some families, the children’s residence and the parenting schedule are concepts that blur together.

If there is a dispute about whether your children live with you or your spouse, the Courts will decide based on what is in your children’s best interests.

It is most common for children to spend time with each parent and sleep at the homes of each parent, based on the parenting schedule. Where children live refers to the home that is their primary residence and where they sleep most.

Often, children live with one parent. This is referred to as the primary care of the children. For child support purposes, children live with a parent if they spend 40% or more of their time with that parent, which includes sleeping at their home.

Shared parenting means that children live with each parent.

Shared parenting refers to you and your spouse sharing the day-to-day care of the children on an approximately equal basis. For example, one week with each of you, or several days each week with each of you. The parenting schedule is typically tailored to your family and your children. This type of situation works best if you and your spouse live in the same area and are able to communicate effectively. Shared custody also has implications for child support.

Split parenting means that siblings live with separate parents.

This is fairly unusual, although sometimes applies when there is a wide age difference between the children, because of severe hostility between the children, or the inability of a parent to care for all of the children.

Parenting time

While custody deals with decision-making and where the children live, parenting time refers to the time that your children spend with you and your spouse.

“Access” is a term from the Divorce Act that refers to the time the non-custodial parent spends with the children. This language is old-fashioned and not used much anymore. It’s better to think about parenting time as the time shared by parents, as set out in a schedule or agreed to as life unfolds.

Spending time together with each parent is the right of the children, not the right of the parent. The Courts consider it in the best interests of the children to get to know each parent on an individual basis. Regular time with each parent is often very important as it helps maintain your children’s emotional bond despite the separation.

You and your spouse have an obligation to encourage your children to spend time with the other parent. It is important that you both follow the parenting schedule and if a change is required, to give the other party ample notice and an alternative, when possible. You and your spouse should use your best efforts to make parenting go smoothly, especially at exchanges of the children.

Parents should work together to try to maintain the children’s routine. You cannot interfere or control what happens during your spouses parenting time, as long as the children are safe. During their time with each parent, children get to bond with that parent and get used to their new life after separation. This may include contact with that parent’s new partner.

The needs of the children should determine parenting time. You and your spouse or the Court decide whether parenting time is open, specific or flexible, or if it comes with conditions.

Reasonable and generous parenting time

“Reasonable and generous parenting time” is a standard, open and flexible arrangement. If you and your spouse can communicate effectively, you can arrange specific dates and times between you and have a flexible parenting plan.

Specified parenting time

“Specified parenting time” is also reasonable and generous access but sets out specific dates and times. This is most common. A structured parenting schedule often reduces stress by avoiding miscommunication and confusion.

Conditions on parenting time

Parenting time is rarely denied by the Courts unless there are exceptional circumstances such as alcohol, drug or physical abuse. However, if the situation is serious, the Court may place conditions on parenting time, for example, supervision, time limits, or a no drinking clause.

“Supervised parenting time” means that a third-party is present during a parent’s time with their children. It may be appropriate in situations where there are concerns about drug, alcohol, physical or other abuse, or inability to parent. The supervisor is a mutually someone both parties agree on or a professional from a supervision agency.

The Courts and legislation encourage parties to have a Parenting Plan.

The parenting plan would set out major decision-making responsibility and how and when your children spend time with you and your spouse, and even a process for dispute resolution. The plan is unique to each family, based on your family’s needs and issues. The ultimate goal is, of course, to come up with a plan which will be best for your children.

Interim versus final arrangements

Until parents make final decisions or have a trial on parenting issues, the Court makes interim arrangements.

Mobility refers to when the children move

Regardless of the type of custody, a move by one parent may have serious consequences for the other parent and the children. If a parent applies to the Court for an Order allowing or preventing a move, the Courts will consider the best interests of the children – in the current situation – in the proposed new city or living with the parent who does not move.

Enforcing parenting time

The Court will enforce a parent’s parenting time. If you have a specific Court Order with a police enforcement clause, the police may enforce your parenting time. This method of enforcement is usually only appropriate in extreme cases (such as possible child abduction) as it can be distressing to your children. The Court also has the discretion to discipline a parent who regularly interferes or limits the other parent’s time through fines, contempt of court, and even a change in custody. If you are having problems enforcing your access, talk to your lawyer.

Parenting After Separation Seminars

The Court offers these are free seminars to assist parents who are experiencing separation. This course is mandatory if you are divorcing and voluntary if you are not married. We strongly recommend that you take this course.