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Children are frequently the most important issue for spouses going through a separation or divorce. Custody, visitation, and child support issues are usually difficult to resolve, and when parents are divorced, those same issues become considerably more problematic.
In some cases, the child custody decision might be reached peacefully by the parents throughout the separation process. If this is the case, the couple should ensure that their agreements are adequately documented in a legally enforceable separation agreement.
If an agreeable arrangement cannot be reached, the courts will decide who will have custody and what sort of custody they will have. This is not a choice to be taken lightly, and divorce law establishes specific fundamental guidelines for a judge to follow when making such a significant decision.
To help you better understand your rights as a parent, here are a few principles pertaining to child custody for unmarried parents in Ontario.
Child Custody Rights In Canada
Child custody laws for unmarried parents relate to a specific legal ability to make choices for a child whose parents are no longer married. At the time of separation, parents might amicably decide on child custody. If the couple agrees on anything, they should set out a legally enforceable separation agreement.
If an agreeable arrangement cannot be reached, the court will determine who will have custody and what form of custody will be granted. Divorce law establishes specific fundamental criteria that a judge must follow when making such a significant judgment. Therefore, the arrangements for child custody and access will have a considerable influence on a child’s well-being.
Child support, spousal support, and property partition may all be affected by such judgments. As a result, it’s critical for all parties to seek legal counsel concerning custody during the divorce process in order to safeguard your legal rights as unmarried parents. The federal Divorce Act, as well as provincial custody legislation, make up Canada’s custody laws.
Types of Custodial Arrangements in Canada
If a child custody matter goes to court, the court will consider several relevant criteria before making a custody decision. There are four options when it comes to child custody in Canada — sole custody, joint custody, shared custody, and split custody. Here’s a closer look at each one:
Sole Custody
When a parent has sole custody of a child, also known as complete custody, only one parent makes decisions that impact that child, and the other parent is not involved in those decisions. A parent with parental rights has the right to obtain information regarding issues that affect their child’s well-being. This can contain information from the child’s doctor, dentist, and teachers, depending on the child’s age.
Joint Custody
When two parents have joint custody of a child, they are both accountable for making choices on behalf of the child. This is often referred to as shared legal custody. If parents can’t agree, they can try mediation or hire a parenting coordinator who has the power to settle the problem. The court will usually give joint custody to parents who are able to collaborate on parenting issues.
Shared Custody
The parents reside in different households and have shared custody of their children and each parent spends at least 40% of their time with the child/children in this arrangement.
Split Custody
In this case, if there is more than one child, one parent has custody of some of the children while the other has custody of the remaining children. The court should never separate younger siblings (children under the age of 18) from their siblings. Older siblings (18 years and older), on the other hand, frequently opt to live with separate parents.
Parental Rights of Never-married Parents
Knowing your rights as parents who aren’t married in Canada might help you avoid difficult legal circumstances. Unmarried couples in Canada have the following fundamental child custody rights:
Mother’s Rights
A child born out of wedlock is automatically given to the mother. However, the father might seek custody for several reasons. According to the Supreme Court of Canada, an unmarried mother cannot simply move away from the child’s father without his consent. Even though the child’s mother has sole custody, the father must be informed and have a say.
If no rational cause exists pertaining to the child’s well-being, no provincial court would allow the mother to keep the child away from the father. Even so, if the mother gets exclusive custody, things might be quite straightforward. Because she is entirely responsible for the kid’s well-being, the mother may nonetheless be permitted to keep the child away. The issue occurs when the child is shared between the father and the mother.
Father’s Rights
Fathers are not usually afforded the same opportunities as mothers. For example, if he is not married to the child’s mother, an unmarried father may not have the same legal protection as a legally married father. Again, it’s because unmarried dads’ rights aren’t recognized until paternity can be established.
Before seeking custody of his child, an unmarried father must establish paternity. If paternity cannot be established, he will have no authority over the child’s life. This covers child support payments as well.
In addition, a parent can terminate paternity over his child to avoid paying child support. By doing this, unmarried fathers are not legally obligated to provide assistance throughout their separation.
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Canadian Custody Laws That May Apply to Unmarried Parents |
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| The federal Divorce Act | In Canada, the Divorce Act governs the dissolution of marriages. It discusses how married couples get divorced and when foreign divorce decrees are accepted in the United States. It also discusses child custody and access after a divorce, as well as child support and spousal support. |
| Provincial custody legislation (i.e. the Ontario Children’s Law Reform Act) | The Children’s Law Reform Act (CLRA) is a provincial law that only applies to residents of Ontario. It focuses on children’s concerns, such as post-separation parenting arrangements and assistance. |
| The court’s parent of the nation jurisdiction | The Supreme Court has parents’ authority to issue protective orders for people who are unable to defend themselves, especially minors. However, the Court’s primary concern is the best interests of the child, and its authority must be used with extreme discretion. |
Who Has Custody of a Child When the Parents Are Not Married in Canada?
In general, Canada’s legal system treats both parents equally and gives them equal rights. For example, in the event of a separation or divorce, unmarried parents may reach an agreement in which one of them takes exclusive custody of the child, or they may agree to share joint custody and submit a sample child custody agreement for unmarried parents. However, joint custody does not imply that the child spends equal amounts of time with each parent.
A parent or another individual, such as a family member or acquaintance, can petition the courts for custody of a child under Canadian law. The applicant’s clear intention to parent and care for the child is taken into account by the courts. However, when it comes to child custody, women will almost always be the first to get the custody order without any complications.
Even though the law favors the mother, the biological fathers can still seek custody of their children, but they must first establish paternity before filing a custody claim in court. The unmarried father could enjoy full legal custody of his child once paternity is proved.
There’s still a chance that the custody judgment may be contested. In such custody cases, it is recommended that both parents work together and make a decision that will keep the best interests of the child at heart.
Pro Tip
A court’s responsibility is to protect the rights of the vulnerable — in this case, the child or children involved. If you enter the courtroom with the mindset that your child is the most important thing in the world to you, you will be a step ahead.
Calculating Child Support Payments
Children have a legal right to financial support from their parents, even if both are not married to one another.
If both parents could agree on an appropriate amount for child support, they may set up their own child support agreement. It’s best to put the agreement into writing with both parents’ signatures to avoid misunderstandings and ensure proper enforcement.
If the parents cannot agree or want some assistance, the court could decide. The court would likely make their decision based on the Federal Child Support Tables, which consider the parent’s income and the province of residence.
You could use the official Child Support Calculator based on these tables, which will give you a baseline value.
Seek Legal Assistance From the Experienced Family Law Lawyers of Gelman & Associates
Gelman & Associates offers efficient legal assistance during custody and access disputes that are customized to the client’s specific requirements. We aim to provide clients with the information they need to make educated decisions about custody and access, and will actively fight on their behalf when required.
During a separation, divorce, or any other family law case, contact Gelman & Associates to learn how skilled family law lawyers can assist in safeguarding your rights and assets. Our phone lines are open Monday through Friday from 8 a.m. to 8 p.m. in order to be available to current and potential clients. For a discreet initial consultation, call (844) 769-0737 or 1-844-769-0737, or contact us online.
Child Custody Unmarried Parents FAQs
Historically, mothers have been more likely to get sole custody of their child in both consent and contested orders, as they are usually the child’s primary caregiver. However, as more mothers also work outside the home, courts could also rule in favor of the father.
Yes, but they will need to establish paternity, especially if the father and the mother separate. Here are the ways to establish paternity as recognized by the court:
- Act of birth
- Presumption of paternity
- Uninterrupted possession of status
- Voluntary declaration
No. Even when the parents are unmarried, divorced, or separated, one parent cannot keep the child from seeing the other unless the court deems it appropriate to the child’s best interests.
