One of the biggest confusions for individuals who are faced with having to come up with a parenting plan with their former partner is the difference between custody, access and primary residence. We will often hear a parent say that they want to have “sole custody”, as a means of saying they want the child to live with them the majority of the time, however this is not how the legal systems or courts would view it.
Custody refers to who is responsible and able to make major decisions for the child or children and how they are raised. This includes decisions regarding:
• Education, such as where the child will attend school;
• Medical, such as whether the child will have a specific surgery; and
• Religion, such as whether the child will be raised and participate within a specific religion.
If you have sole custody, this would then allow you to make these major decisions regarding your child, without having to have the child’s other parent(s) agree to the decision.
Joint custody, on the other hand, requires that the parents to the child both have input on the major decision-making, and that they have to come to an agreement when it comes to making a decision. Joint custody is easier if the parents share similar ideas on how they want to raise their child, however it still requires cooperation of each party. There is a presumption in Ontario law that each parent is equally entitled to custody of a child.
It is possible that the parents can have joint custody, and should they not be able to come to a decision on the matter, that advice or opinion of a third party professional be followed, such as doctor when it comes to making medical decisions regarding the child.
As well, parents can agree to divide the decision-making aspects of custody, so that one parent is responsible for one area, such as educational decisions, while the other is responsible for another area, such as religious decisions. This is often referred to as parallel custody and allows the parents to remain highly involved, but helps to limit the communication or decision-making between the parents.
Physical Custody, Primary Residence & Access
Many people can become confused when using the word “custody” because it is often used to discuss the physical living arrangement of the child, but then also used to describe the responsibility of making major decisions for the child, as previously discussed.
Having shared/joint physical custody of the child, means that the child lives with each parent, on at least a 40%/60% split. This terminology is based upon the Federal Child Support Guidelines, which looks at the time that the child is living with each parent in order to determine child support quanta.
It is also possible to have split custody, which can occur if there is multiple children, and at least one child lives with each parent primarily. This is again terminology that is based upon the Federal Child Support Guidelines.
Primary residence refers to where the child lives on a day-to-day basis. This is based on the parenting schedule and who cares for the child most of the time. The parent who has the child for the majority of the time can often referred to as the primary caregiver.
Access refers to the parenting schedule of a child, and whether a parent has the right to visit or be visited by the child. Access will occur if a child lives primarily with one parent, but then spends time with the other parent. Access can vary greatly, and what access ends up being is determined on a case-to-case basis, taking into account a number of factors. Access can be fixed, or it can be left opened or left to the discretion of the primary caregiver.