Child Custody and Access After A Marital Split

The foundation of any business is still people. Problems affecting humans ultimately impact the business, especially in an emotionally charged atmosphere like a separation or divorce. Since there are so many misunderstood factors in marital breakdown situations, it is worthwhile to have at least a passing knowledge, even if it is not you but one of your employees, who is directly affected.

When I meet with family law clients, their first question is usually two-pronged – what legal issues am I faced with and what legal options are available to handle these issues?  At the risk of oversimplifying the answer to the first question, the main issues in most family law disputes are divorce, spousal support, property division and, the focus of this article, child custody, access and support.

With some exceptions, such as post-secondary or adult dependant situations, “children” are usually those under the age of 18. A parent might be the natural father or mother of the children. It could also be someone else who has stood in the role of parent for the children. A step-parent or grandparent are common examples.

Custody issues really involve the division of decision-making powers, not the actual access to or time spent with the children. A joint custody scenario involves both parties deciding on the children’s education, medical needs, extracurricular activities and the like.  A sole custody situation, on the other hand, presumes only one of the parties makes these decisions. If the parents were still living together when the children were born, there is a presumption towards joint custody.

Access to the children is a completely different issue. The starting point is that one party should not be favoured over the other just because they are the mother or the father of the children. Instead, our courts and laws have deemed that maximizing the children’s time with both parents is most important, as long as it is in the children’s best interests.

If maximizing time is appropriate, the parties may enter into a shared parenting situation where each of them parents the children between 40% and 60% of the time. This is what people commonly see as the week on/week off relationship. Depending on the ages of the children or other circumstances, a 2/5/5/2 or 3/4/4/3 daily split (or something else) might be more appropriate for the children.

If it is decided that one party should have access to the children more than 60% of the time, again taking into account the children’s best interests, that person will be the primary parent and the other will be the access parent. An access parent often still has joint custody. They should be involved in many of the important decisions respecting the children’s needs.

The last issue to address is that of child support. There are many variations and exceptions under the Federal Child Support Guidelines. The default is that in a shared parenting situation both parties’ total incomes are considered. Each party is responsible for paying the calculated amount in proportion to their respective incomes. In a primary parenting situation, the access parent could pay full Guideline support. To estimate how much support would be payable, there is an online calculator that can give a good starting point on this issue.

When working through these family law matters, always do research and financial disclosure with each other first. After that, try to sit around the kitchen table and find an amicable resolution that works for everyone. If you can do this, then bring your agreement to your lawyer who can begin drafting a formal separation agreement. Ultimately, both parties must meet with their own lawyers to get advice on the agreement and, hopefully, all parties are able to sign the agreement. Remember that parties may decide to differ from what the law would allow for issues of child support, but these types of agreements may not be enforceable if the matter goes to court down the road. That is because the court will always consider the best interests of the children and may vary an agreement where they find the children’s interests conflict with the agreement.

The alternative is Court proceedings and applications. This will not be a surprise but it is almost always the worst option. There is of course the cost issue but it is hard to overstate the impact that ongoing litigation has on one’s mental state, not to mention that of related parties such as children. Court should always be seen as a last resort if the informal discussions, and other avenues of mediation, have become unworkable.