Unlike their parents living in common-law relationships, children born out of wedlock are protected by the civil laws of Quebec, and in the same way as a child from a married or civilly united couple. Thus, the legislature does not discriminate against children with regard to their parents’ obligation to support them.
Making the decision to divorce is not an easy decision when there are children, emotions can easily take over.
What are the questions that the parents should ask themselves when they are separating and what points should they resolve prior to instituting legal proceedings before the court concerning the custody of the children?
Firstly, it will be necessary to decide where the request for custody will be presented. The jurisdiction is important because it is the jurisdiction that will determine the Court House where the case is to be heard.
With respect to family matters and according to section 45 of the Quebec Code of Civil Procedure (“C.C.P.”), the elected court house is the one where the two (2) parties are domiciled and usually reside; otherwise it will be the address of the domicile of one or the other party.
If a judgment was previously rendered and the parties no longer reside in the same jurisdiction, an application may be made before the court in the jurisdiction of the domicile of either party under article 70 of the C.C.Q.
Once the jurisdiction has been established, the parental arrangements and the place of residence of the children will have to be discussed.
There are different types of custody arrangements that can be considered, several solutions and alternatives can be put into place, keeping in mind the best interest of the children.
If no agreement is possible, the court will make a decision in the interests of the children.
Taking into account the parental capabilities of the parties, their implications with the children and the level of communication between the parties, etc.
It is important to keep in mind that when custody is granted, the court is careful that the custodial parent makes the effort to maintain and maximize contact between the child and the other parent.
THREE (3) TYPES OF POSSIBLE CUSTODY:
- exclusive custody;
- shared custody;
- exclusive custody with extended visitation rights.
Before discussing the type of custody, it is important de note that, notwithstanding the type of custody, both parents continue to exercise their parental authority jointly, as provided for in article 600 of the C.C.Q.
Parental authority is the process of making major decisions together, namely health, religion and education.
Any daily decisions concerning the child are taken by the custodial parent without the intervention of the other parent, except, of course, in the event that the child’s well-being and the best interests are at stake.
In an exclusive custody, the child remains principally with one parent while the other sees the child 20% or less of the time. All the daily decisions concerning the child are taken by the custodial parent but all major decisions are taken jointly by both parents. It should be noted that there is no presumption as to the sole custody of the child. What is in the best interest of the child is at the heart of the dispute.
In a shared custody scenario, the child remains with both parents at least 40% of the time. Shared custody is no longer an exceptional measure and must be seriously considered with parenting abilities are equal. It is either granted as a result of an agreement reached between the parents or imposed by the court. There are numerous decisions rendered that refer to the criteria used to determine whether shared custody is viable measure.
The Quebec courts have shown that shared custody is possible when the following elements are considered:
- the age of the child;
- the parents parenting skills;
- the availability of the parents;
- the education, the moral and spiritual values of the parents;
- the ability of the parents to communicate with each other without conflict;
- the proximity of the parents’ residences;
- the absence of any form of parental alienation and the demonstration of the importance of maintaining a relationship with the other parent;
- the desire and wishes of the child.
Sole custody of a parent with extended visitation rights to the other parent means that the child is with the noncustodial parent between 20%-40% of the time. This custody can be considered as an extended visitation rights and may be a type of custody that is put into place to slowly arrive at shared custody for the welfare of the minor child.
It is important to note that when decisions are made, the age of the child and the level of maturity may be a factor in determining the type of custody.
In some cases, an attorney may be appointed to represent the interests of the child before the court in the event of a dispute between the parents. This allows the child to speak with a neutral third party.
Not all children are eligible for this type of representation. It is only under certain conditions that the desires of a child are considered from the age of 10 years.
Lastly, it is important when you are speaking to a child of divorce that he or she understands that he or she will have two (2) homes and will spend time with both of his or her parents, with as much stability as possible.
For additional information concerning the types of custody or any other aspect of this article, do not hesitate to communicate with our family law lawyers Montreal at 514-499-2010.
Azran Lawyers
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