There is a common misconception about what the term custody means. In Ontario, custody is not about which parent the child lives with or how much time a child spends with each parent. Even if a child lives equal time with each parent, only one parent might have custody. Likewise, even if a child lives mainly with one parent, both parents might have custody. Custody is distinguished from residence.

“Custody” refers to the right to make important decisions about how to raise and care for a child. It can cover such important areas as schooling and education, religion, health care decisions, extra-curricular activities, and where the child will live. There are two different types of custody:

  • Sole custody means that one parent can make all of the important decisions about the child, even if the other parent disagrees. In some situations, the parent with sole custody must talk to the other parent before making a decision.
  • Joint custody means that both parents must agree on the major decisions about the child. One parent cannot make a decision without the agreement of the other. Where they disagree, they must work together to come to a solution. If parents are unable to make these decisions together, courts will be unlikely to order joint custody. Sometimes, parents with joint custody divide the decision-making, with one parent making educational decisions and the other parent making health care decisions, for example.

The confusion about what custody means comes about from the term “shared custody” in the federal and provincial Child Support Guidelines. In the Guidelines, “shared custody” refers to residential arrangements. This term is an exception to eh general rule outlined above, but understandably, causes significant confusion.

“Residence” refers to where the child lives. The child may live with mainly with one parent, or may divide their time living with both parents. The living arrangement can be anything that is in the best interest of the child.

“Access” refers to the right of a parent to spend time with the child in the case where the other parent has sole custody. A parent with access also has the right to ask for and be given information about the child’s well-being, including health and education. There are several different types of access, which will be covered in another post.

As mentioned in an earlier post, courts have begun moving away from the using the terms “custody” and “access” which connotes a “winner” and a “loser”, preferring instead to use the neutral term “parenting plan”.

If you have questions about custody and access, please contact experienced family lawyer Jason P. Howie, online or at 519.973.1500.