In Canada, a custody order sets out the roles and responsibilities for the care of a child. In cases where both parents live together and care more or less equally for a child, no intervention is generally required from the courts.
It’s in the case of divorce or separation, where the responsibilities and roles of each parent are not nearly as clear-cut. In these circumstances, the exact responsibilities of each parent will either have to be agreed on by each parent, or decided on by the court.
This is where the custody order comes in. And once it’s been agreed upon by both parents, or imposed by the courts, it can be challenging to change. It’s on the party that wants the change to prove that the current setup isn’t working in the best interests of the child, due to a significant change in circumstances not foreseen at the time the custody order was finalized.
This is a change of custody order or variation order.
What is child custody?
To start, it’s useful to define exactly what child custody is, in the legal sense. It’s a deceptively simple term. When it comes to family law, there are two types of custody: physical custody and legal custody.
Physical custody simply refers to where the child resides.
Legal custody is a little more complex and has more to do with who has decision-making powers on key aspects of the child’s life. The parenting arrangement will be dictated by whoever has physical custody of a child. If both have custody at least 40% of the time, it’ll likely be a shared arrangement. If not, one parent will be deemed the primary guardian and the other parent will have to work out a visitation schedule.
In the vast majority of cases, custody is joint.
This is almost always the preference of the court, which understands the value to a child of having access to both parents in their lives. There are certain extenuating circumstances that can make joint custody impractical or impossible.
What qualifies as extenuating circumstances?
Extenuating circumstances that may immediately cause a change of a custody order are essentially restricted to situations that affect the immediate safety or well-being of the child.
To achieve this, a parent must be able to prove either the other parent has substance abuse issues, or there is a danger of abuse or neglect where the child currently lives.
These are examples of extenuating circumstances that could trigger a significant change to the custody order, as in transferring the primary caregiver role from one parent to another. There are plenty of less drastic changes that are a little more day-to-day that can trigger a change of custody order.
What other circumstances could trigger a change in custody order?
Change is a normal part of life – so, it’s pretty normal for the conditions that make a certain custody order necessary to change along with it. A court will normally want to see that a significant change has occurred in your life or the life of your spouse.
If one party is able to demonstrate to the court that a change is necessary, the court may choose to order a custody evaluation. If this happens, both parties will have the opportunity to present evidence of their circumstances. The court will then re-evaluate what custody arrangements and amounts are in the best interests of the child.
In general, significant changes in three primary areas could trigger a change in the custody order:
- Parenting Roles
- Child Support
- Spousal Support
A change in parenting rights may be requested if one parent wants to move out of the area, is required to move for a job or if a child is older and has new requirements.
Child support may change due to a significant change in earnings, due to job loss. A change in spousal support may be requested if bills or earnings have significantly shifted up or down, or if one parent is unable to work due to illness, injury or disability not anticipated when the custody order was signed.
Do you need to go to court to make a custody change?
You don’t necessarily need to go to court to make a change happen, in fact, it’s probably best not to involve the courts in the final decision if you can help it. If you can amicably decide on a new set of terms with your spouse, you can save both parties significant time and money.
If you and your spouse both agree to certain changes to the custody order, you can submit what’s called a consent order. When both parties consent to all the included changes, you’ll just need to get a rubber stamp from the court.
If you can’t agree, there are plenty of outside-of-court alternatives to explore, from mediators to counsellors. These professionals can help you hash out any differences with your spouse before it comes to court.
If none of the above is successful, a court is the last resort.
Extenuating Circumstances: Conclusion
In Canada, the preference of the court and generally the best interests of a child align in allowing joint custody between two parents. Unfortunately, this isn’t always the most convenient arrangement for the parents nor the safest or most stable arrangement for the child.
In more complex cases, a custody order will have to be put in place to define the roles and responsibilities of each parent. Canadian law stresses the best interests of the child above all else in these cases.
This tenant continues to be true if any changes to the custody order are needed in the future. It’s up to the parents to be able to prove that the changes they are requesting are placing the needs of the child above all else, and there also needs to be a significant lifestyle change that necessitates the custody change not foreseen when the initial order was created.
