1. Can I lose custody of my children if my spouse and I are not divorcing?

No. Under the Canadian Divorce Act, the custody orders are part of the divorce application.

2. Can non-parents file for custody of my child?

Yes, but it requires special permission of the court and such permission is usually only granted in cases of neglect or misconduct.

3. If I am not granted custody of my child, will I lose access to him/her?

Unfortunately, there is no solid answer to this question. In most cases, you will not lose access to your child unless you demonstrate a willful disregard for having access, or you have shown that your continued access to the child is potentially harmful to the long-term well-being of the child. Traditionally, Canadian courts will do whatever they can to ensure that a positive relationship between non-custodial parent and child is maintained.

4. My ex and I have two children. Wouldn’t it be fair if I had custody of one, and my ex got custody of the other?

In some cases, yes. If you can demonstrate that such an arrangement would be beneficial to the children, then the court will undoubtedly agree with you. However, this is not an easy feat to accomplish. Some factors that might aid in your case would be age difference or extreme animosity between the children.

5. I have a full-time job that will require me to put my children in day-care if I win custody. My ex, on the other hand, would be able to stay home and care for them. Does this affect my chances at winning custody of my kids?

Yes. Canadian custody courts will more often than not find in favor of the parent that can provide more personal, day-to-day care for the children.

6. My ex and I have separated on good terms. What is likely to happen as far as custody of our child is concerned?

Canadian courts often favor joint custody, where each parent has an equal say in child-rearing issues and major decisions that concern the child. Though one of may end up as the child’s primary caregiver, the other will still have an equal say in the way the child is raised.

7. My 8-year-old clearly favors me over my ex. Will this have any bearing on who gets primary custody?

Sadly, no. The wishes of children under the age of 9 are seldom influential in a custody court’s decision. As the child gets older, however, you may stand a better chance of modifying your custody arrangement, providing, of course, that the child still wishes to be with you and not your ex.

8. My ex has stopped paying child support. Can I stop him from seeing the children?

No. Child support and “access” to the children are two separate factors. You cannot legally prevent your ex from visiting the children without violating the rights that the court has previously granted him or her. On the same note, a parent with access cannot stop or lower child support payments because the custodial parent has made visitation difficult. In both cases, both parties would be in violation of court orders. To remedy either situation, you must attempt to have the custody arrangement modified, and this can only be done by a custody court. Thankfully, under the Canadian Divorce Act no custody arrangements are permanent, so they can be modified.

9. I live in Ontario, with custody of my children. I’ve recently been offered a better-paying job that would require me to move to Alberta. Will this affect my custody arrangement with my ex, who has weekend access to the children?

It certainly can if you do not provide proper notice to both your spouse and the courts, and even if these criteria are met, this issue is often extremely problematic for the custodial parent. Current Canadian custody law does not grant any preference to the custodial parent in this matter, and this could provide your ex with just the reason they would need to take away your custody of the children.

Canadian courts have consistently ruled that any move that will require a parent with access (visitation rights) to travel more than 30 minutes more than they have previously traveled to exercise their visitation rights will require their permission. As you can probably imagine, getting this permission is difficult, not only because it puts more strain on the non-custodial parent, but because the courts have determined that increased distance from either parent can be a detriment to children, especially when a previously agreed-upon schedule of visitation is already established.

10. My ex, who has custody of the children on weekends, has disappeared with the children. What can I do?

Obviously, you must contact the authorities immediately. Your custody order is binding in every province, and international law also exists to prevent such acts. Your ex has broken the law by abducting the children and will be prosecuted as a criminal. Additionally, he has waived all rights to the children at this point.

11. My ex and I signed a separation agreement before the divorce wherein I would get primary custody of the children. Now, it appears that he has changed his mind and wants more access to the children. Will the custody court take our separation agreement into account?

Yes, they will. However, Canadian custody courts have the right to disregard such agreements if they find that the best interests of the child would not be satisfied. Separation agreements provide the court with a nice groundwork to build their decisions off of, but they are not, in any way, concrete.

12. My ex and I never married. Do I have custody rights?

Absolutely, providing that you and your ex shared parenting responsibilities prior to your separation. If you lived together, your chances are even better. However, if you are only the biological parent of the child, and have shown no interest in the child prior to the decision to obtain custody, your chances are slim to nil.

13. My ex has repeatedly refused to allow me access to my children, even though the court has granted me weekly visitation rights. What can I do?

Contact your lawyer immediately. Your ex is acting in contempt of court, and may be subject to fines or jail-time. Most importantly, keep a record of your ex’s refusals. If these refusals are persistent, you may end up being awarded custody of your children.

14. What is a child custody assessment?

A third party, often a child psychologist or psychiatrist, but sometimes a social worker, sits down with each parent and the children, both together and separately. After a period of several months, the professional involved compiles a report with their own recommendation of who should get primary custody of the child or children. This report is then submitted to the court. Child custody assessments are a good alternative to expensive litigation, though they can be court-ordered.

15. What happens if the assessment finds in favor of my ex? Is there anything I can do?

If a qualified and experienced third-party mediator finds in favor of your former spouse, the court will undoubtedly agree with the assessment. If this is the case, you should probably ask yourself what your true motivations for seeking custody were – were they in the child’s best interests, or were you simply trying to “get back” at your ex? If the latter is true, then you are better off submitting to the mediator’s decision. However, if you truly believe that the mediator is wrong, your lawyer has actions that he or she can take to refute the assessor’s findings.