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Clarifications on Custody

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Legal Custody refers to decision making authority on issues affecting a child’s welfare including religion, education and major health decisions.

Parties with joint custody are required to make these welfare related decisions for a child together after consultation with one another.  A party with sole custody can make these welfare related decisions on their own, without having to consult with the other parent.

Fighting over who gets custody of a child can be an expensive and exhaustive process.

In certain circumstances, there is an alternative solution to joint custody or sole custody. Specifically, instead of deciding what type of custody arrangements governs, parties can make custody related decisions in advance.

As examples using each of the 3 major custody headings:

Religion: Often, by the time of separation the child’s religious practices are already known. If the child has been raised Jewish or Catholic for 10 years, it is highly unlikely that practice will be changed. Accordingly, parties can agree in advance that the child will continue to be raised in the same religious affiliation that the child was raised in prior to separation. This takes this issue out of the custodial negotiations.

Education: If the child has always attended public school, it is likely that the child will continue attending public school in the catchment area that is applicable. Accordingly, deciding which school is in the child’s best interest is decided by the catchment rules of Ontario. This too resolves the issue without the need for further negotiations.  

Major Medical Decisions: It is unlikely that parents will actually disagree on major medical decisions. The reality is that if professionals advise parents that a child needs braces, or that a child requires surgery, parents are likely to agree with the professionals. That being said, there are smaller ongoing medical issues that need to be attended to from time to time. To resolve this issue, sometimes parents put one parent in charge of ongoing medical issues and the other parent in charge of ongoing dental issues. This is known as “parallel parenting”.

Depending on the circumstances of your particular case, it may be possible to tackle these issues in advance and to avoid arguments relating to custody all together (as identified above). If these issues cannot be resolved in advance, it is important that you understand which custody arrangement is best for you by speaking with a family law lawyer.

About the Author

Annie Noa Kenet has been practicing in the area of family law since her call to the bar in 2007. Annie advocates on behalf of clients at mediations, arbitrations, the Ontario Court of Justice and the Superior Court of Justice.

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