Thursday April 15 2021

General publication

Child Custody Arrangements May Have A Variety Of Scenarios

Firstly, it should be noted that the law does not provide for any specific or mandatory custody arrangement in the event of parental separation. In fact, the only criterion applicable by law is that custody arrangements reflect the best interests of the child. Case law has ruled on various factors determining the best interests of the child, such as: the age of the child; the availability of the parents; parental capabilities; the proximity of the parents' residences; the child's particular situation; etc. Thus, there is a multitude of scenarios allowing parents to exercise custody of their child. 

In theory, there are two types of custody: shared custody and sole custody.   

Shared Custody

In shared custody, the child spends between 40% and 60% of the time with each parent, or 146 to 219 days per year. The classic example of shared custody is every other week, or 7 days with each parent. This custody arrangement is typically exercised when the children are a little older.  

Several other custody arrangements, such as the "2-2-3", "2-2-5-5" or "4-3-3-4" models, are used when the children are very young (under 3 years of age) to avoid long separations from the parents and to maintain frequent contact with each of them.

In addition, some parents have jobs that require atypical work schedules (by cycle or shift). For example, a job that requires several consecutive days of work, after which there is time off for several consecutive days. Custodial arrangements in accordance with these types of schedules are then also possible.  

Finally, a new concept has arisen that allows the children to stay in the residence while the parents alternate according to an established schedule. This is called "nesting,” which provides stability for the children, limits change and maintains the same environment, all without unnecessarily disrupting their environment.  

Sole Custody

In sole custody, the child spends at least 60% of the time, or more than 219 days per year, with one parent and the rest of the time with the other parent. Sole custody may be awarded with or without access rights for the non-custodial parent. Contrary to popular belief, sole custody is not limited to the traditional "every other weekend" arrangement. In fact, there are a variety of scheduling options, such as 3 days the first week and 2 days the second week for the non-custodial parent. 

While there are a variety of possibilities, parents are encouraged to be creative and devise a mutually agreeable solution for sharing parenting time. 

In short, there is no “one-size-fits-all” answer, as each family situation is different, unique, and not amenable to generalization. 

At some point, a change of custody may be necessary because the planned custody arrangements are no longer appropriate. Consequently, it is always possible to change the custody arrangements, either by out-of-court agreements between the parties or by the decision of a judge.  

Finally, it should be noted that as of March 1, 2021, the Divorce Act was amended to eliminate the terms "custody" and "access" and to introduce the concept of "parenting time.” 

Vanessa De Minico, Attorney-at-Law

Alepin Gauthier Avocats Inc.