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"Custody" Under the Divorce Act

The term "custody" is not defined in the Divorce Act. Rather, the term is defined in the case law. 

In general, "custody" includes: 

  • (a) the right to determine a child's education, health care, religion, and other matters concerning the child's general well-being; and 
  • (b) physical control over the child. 

It is of note that the Divorce Act only applies to married couples. 

Married couples may apply for orders under the Family Law Act. Under the Family Law Act, instead of using the term "custody", the following terms are used:"guardianship", "parental responsibilities", "parenting time", and "parenting arrangements".

Sole Custody

If a court orders for one parent to have "sole custody", then in general this means that the parent entitled to "sole custody" will have the ultimate decision-making authority in relation to the child's education, health, and general well-being. However, in most cases the other parent will still have rights to access to the child. 

Joint Custody

If a court orders that the parents will have"joint custody", then in general this means that both parents will have the decision-making authority for the education, health and general well-being of the child. 

It is of note that a court may order "joint custody" even though the child does not spend equal amounts of time in the care of the parents. 

It is also of note that there is no presumption that the courts will make an order for "joint custody". The trend appears to be that the court will order "joint custody" unless there is evidence that demonstrates that the parents are unable to adequately co-operate and co-parent the child.   

It is possible for the court to find that joint decision-making is not appropriate, but still find that neither parent should be preferred over the other. In such a case, a court may choose to allot certain spheres of decision-making authority to each party. This approach is akin to the approach that has been recognized in the Family Law Act in which the specific spheres of decision-making are stated in section 41 of the Family Law Act. 

Written by
Mark J. Chiu
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