Custody - Joint or Sole?

The concept of “custody” is made up of two components: time sharing; and decision making.

If you have joint custody of your children, it means that you and your ex-spouse share decision making. It doesn’t mean that you necessarily share the children’s time equally.

It also doesn’t mean that you share each and every decision about the children’s lives. It would be cumbersome to have to agree on all aspects of the children’s social lives, for example. In most families, joint custody means that the parents make major decisions together, such as where the children will attend school; what activities they will participate in; what health care is necessary for them and so on. In the best circumstances, it should also include (but doesn’t always) a basic agreement on parenting values, such as bedtimes, consequences for inappropriate behaviour, and limit setting in general. The smaller, day to day issues are usually decided by the parent with whom the children are residing at the time such an issue arises. Smaller issues would include attending social events with other children (such as birthday parties or playdates), or getting haircuts, and things of that nature.

By contrast, a parent who has “sole custody” will usually make all major decisions in consultation with the access parent, but the access parent’s decision making power is significantly reduced. The access parent may have to take the matter back to court if s/he disagrees with a decision made by the custodial parent. The court will tend to support the decisions made by the custodial parent, unless the decisions are clearly not in the children’s best interests.

Having sole custody, however, does not impart an unquestioned right to leave the jurisdiction. If a sole custodial parent wants to leave to move a significant distance, and therefore upset the access schedule, s/he will ordinarily have to take the matter back to court to get the agreement or order varied if the access parent disagrees. However, a custodial parent’s wishes will be taken very seriously by the courts, and the move will be assessed by considering what is in the children’s best interests. In most cases, the custodial parent will be allowed to move if the move is for supportable reasons, on the condition that a fair arrangement can be made regarding on-going contact with the access parent.

Sometimes when parents share joint custody, one parent is noted as the “primary parent”. Although the parties share decision making, the children are actually spending most of their time with the primary parent. If the primary parent wants to move and take the children, but the other parent disagrees, the primary parent will almost certainly have to ask the court for an order permitting the move, whether or not the access schedule is going to be upset. Much will depend on how the joint custody agreement is worded. In short, joint custody gives the “non-primary” parent a little more say in whether the children will leave the jurisdiction, but the distinction is pretty fine.

In cases where the children share their time equally or almost equally between their parents, it will not be easy for either parent to leave the jurisdiction and take the children over the objections of the other, particularly if the move will mean a change of school for the children. The courts value stability for children. Changes in school are only approved if the change is unavoidable. If one parent is remaining in the jurisdiction where the children go to school, and that parent has had the children in his/her care half time, or something close to it, the children will almost certainly be ordered to remain at their existing school if the matter comes before a judge. The court will consider visiting arrangements for the parent who is moving. These visiting arrangements often include a larger share of summer school vacation periods to make up for the interruption in regular contact created by the move.

It is almost never a good idea to move out of the jurisdiction with the children without notice to the other parent. If you are contemplating a move, or if you want to know more about your parental rights and obligations, please contact me, or the lawyer of your choice, before you make any firm plans.

Mary-Jo Maur
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)
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