Custody and primary residence are two separate legal concepts. “Primary residence” refers to where the children live most of the time. The children may live primarily with one parent and have visits (access) or spend time with the other. Parents may still have joint custody (important decisions made jointly) though the children may live primarily with one parent.
Similarly, spouses can have shared parenting of their children (this is where the children live with both parents), while only one parent has the right to make important decisions concerning the child (sole custody).
Primary residence is when the child residences mainly with one of the parents. The non-resident parent may enjoy liberal and generous access to the child, often including alternate weekends. The non-resident parent may equally share the child’s school holidays.
Shared parenting means the children reside with each parent part of the time. The schedule is customized to circumstances which work best for that individual family. Shared parenting very much depends on the parents having similar values and approaches to parenting.
Technically, shared parenting refers to the child residing with both parents equally or the child spending at least 40 per cent of his or her time with each parent. The amount of time a child spends with each parent may also affect the amount of child support to be paid.
Determining whether or not the 40 per cent threshold is reached is itself not simple. Some cases count overnights, while other cases count hours. Some parents are eager to reach the shared parenting threshold in the hopes of reducing or evading child support obligations. Others genuinely believe that it would be best for the child to reside with both parents equally or almost equally.
Family law is an ever-changing area of the law. For example, in early 2018, the government introduced a bill to change references to custody and access. It is the government’s intention to reduce conflict regarding parenting and eliminate terms that are hotly contested. Bill C-78 is titled “An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act.”
Family courts determine parenting pursuant to the Children’s Law Reform Act and Divorce Act, depending on the marital status of the parents at the time of the action. Both legislations set out a similar framework for determining the best interests of the child.
The Divorce Act specifically mentions “Maximum Contact”:
16. ORDER FOR CUSTODY AND ACCESS – (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an Order respecting the custody of or the access to, or the custody of and access to, any or all of the children of the marriage.
(10) MAXIMUM CONTACT – In making an Order under this section the Court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
As set out in the Children’s Law Reform Act:
(2) BEST INTERESTS OF CHILD — The court shall consider all the child’s needs and circumstances, including,
(c) the length of time the child has lived in a stable home environment;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
Herein the conflict regarding primary residence and shared parenting is evident in the subsections of governing legislation. A proponent of shared parenting will cling to one subsection and construe it to her or his benefit, while an advocate of primary residence will focus on another subsection and similarly interpret this section to advance his or her position.
Simply put – whatever your position, barring a deal breaker (i.e. family violence, substance abuse, parental alienation) you will find support for it in the legislation and there will certainly be a case somewhere that backs you – and – regrettably, another case that backs the other side.
In this context of divergent positions, we had Bill C-560 – the aim of which was to amend the Divorce Act to create a rebuttal assumption in favour of shared parenting. Bill C-560 was a Private Member’s Bill. It was defeated in May 2014.
As the law in Ontario stands today – there is no presumption either way – for shared parenting or primary residence.
Mahdi Leite Family Law is here to advise and guide you through every step in the most cost-effective and timely manner. To book a free consultation in Toronto or Mississauga, please call (416) 284-2354 or email us at reception@MLFamilyLaw.ca