Please note, as of March 2021, the definitions of ‘custody’ and ‘custody order’ in subsection 2(1) of the Divorce Act have been repealed. The term ‘parenting order’ now replaces ‘custody order’ throughout the Divorce Act.
Divorce and separation are the most challenging experiences a family could ever go through. Many decisions need to be made, some being serious decisions about your children. In many situations, parents can successfully raise their children through joint custody after they separate. But what if doing so is not in the best interest of the children? In some cases, a parent having complete parental rights is truly what is best for a child’s safety and overall well-being.
Choosing to fight for the sole parental rights of your child is not an easy decision to make. It is a choice that can have many repercussions after the parenting order is finalized as well. Exploring your options when it comes to requesting a parenting order of your child may be necessary but should be considered carefully. There are many heightened emotions during a divorce or separation which can lead to very drastic decisions. However, if you have decided that getting sole custody is your only option, these are a few things to contemplate.
Think about the best interests of your child(ren)
Typically, in family court, judges prefer joint parenting time arrangements. If you are requesting a parenting order, you must prove that any other type of parenting time arrangement would negatively impact your child. Doing so is much easier said than done.
Before we go deeper into how to get a parenting order, it is important to know the difference between the various types of parenting time.
In Canada, there are different types of parenting time you should be aware of if you are a parent currently going through a divorce or separation. These are important to know if you want to further understand the rights you have to your children and how to obtain a parenting order.
Now referred to as physical parenting time, this type of custody refers to the parent’s right to live with their children about equal time. This arrangement requires some cooperation between parents. Most judges prefer this arrangement if the parents are able to cooperate.
Now referred to as legal parenting time, this type of custody gives the authority to one parent to make major decisions for their child. These decisions include education, religion, and health. When one parent has legal decision-making and parenting time, they make every major decision about how the child will be raised. The other parent may offer input but the final decision-making power rests with one parent.
Now referred to as joint parenting time, this type of arrangement means that both parents are a part of the decision-making process.
Now, that we’ve reviewed the various options, why should you obtain a parenting order?
Often during divorce or separation, emotions are running high. This can lead to poor or blind decision-making that can extend into parenting order arrangements. Although it can be difficult, you need to be able to put your emotions aside and think logically through your separation process. Every divorcing couple should try to at least make joint parenting time work before seeking alternative options.
If you are trying to obtain a parenting order out of spite or selfishness, that is not a good enough reason for it to be awarded to you. Attempting to obtain a parenting order should not be about trying to avoid your ex. It should always be about what is best for your children. If you strongly believe your child’s safety is at risk by being with the other parent, then you should work towards being awarded a sole parenting order. If you don’t truly believe your child would be in danger, being with the other person, try and make it work. The most important thing is to minimize the conflict your children are exposed to between their parents.
Obtaining a parenting order
If you are a parent who is interested in learning how to be awarded a parenting order, the first thing we will say is to be prepared. Obtaining a parenting order can be a difficult legal battle and requires a lot of preparation. Many family courts strongly prefer that parents share parenting time with their children, so that is something you will need to overcome.
To be awarded a parenting order, you need to show how or why it is in the children’s best interests. Common reasons your ex-partner may be unfit to be a parent include the following:
- Abuse: Abuse ranks at the top of the list. If there is a present threat of danger, or your ex has a history of domestic or sexual abuse, the child should be removed from that threat of physical harm
- Mental illness: If your ex has a history of unpredictable behaviour, or has a serious mental illness that negatively impacts their parenting, a parenting order may be what is best for the child.
- Alcohol/drug abuse issue: Substance abuse raises a big red flag for judges making decisions about parenting orders. If a parent has a history of alcohol or drug abuse that negatively impacts their parenting, it presents a very real threat to the child.
- Unpredictable/unstable financial situation: If a parent is unable to financially support their child or provide the necessities of life for their children in a safe, healthy environment, a parenting order could be granted to the other parent.
- A new live-in partner proves to be unfit to be a parent: If your ex now lives with a new partner and they show any signs of the above behaviours, a parenting order could be granted to you.
Other legal considerations to think about if you’re requesting a parenting order
Aside from the above, a family judge will review a variety of considerations when making the parenting order decision. Such as:
- The relationship each parent has to the child
- How far the parents live from one another
- The historical parenting roles of each
- The availability of each to a parent going forward
- History of domestic violence and abuse
- History of drug abuse and alcoholism
- The ages and stages of the children
In the best-case scenario, you and your ex can agree that one parent should have full parenting time. In this case, you can go ahead and create a parenting order agreement. If both parties are OK with an agreement, a judge will typically approve it.
On the other hand, if one parent does not want to cooperate with the court and refuses to appear, obtaining a parenting order will be easy to obtain. If a parent shows disinterest in the family court process, a judge will more likely side with the parent requesting the parenting order.
In many cases, partners have a hard time agreeing on sole custody. It may be a long and difficult legal battle. If this is the road you decide to take to settle your child custody issue, be prepared for the challenge. Our lawyers have been involved in many parenting battles. We know the tricks your ex may try to achieve their goal. They know the law and how to protect you. We are prepared to do battle if settlement is not possible.
The bottom line of requesting parenting orders
Sole custody is for the best interests of your children first. It is not for your own selfish gain or to attain revenge. It is all about your children’s overall safety and well-being. You will need to show why not only your partner is unfit to be a parent, but how you can support and raise your child on your own. For your best chance at gaining full custody of your child, work with a family lawyer with a history of winning parenting order cases.
At Galbraith Family Law, we can help you with your parenting order case. Do not leave the well-being of your children up to chance. We can help you create a parenting time agreement or represent you in family court. We are here for you each step of the way. We are committed to resolving family conflict with heart and will keep your case out of court whenever possible. We will stand strong with you should your case need to go to court. To book a consultation with us, give us a call at one of our locations today. For our Toronto law offices call 647-370-8965, for our Newmarket office call 289-210-4692 or you can reach us at our Barrie office at 705-230-2734. We are here for you when you are ready.