Understanding the Grounds for Full Custody of a Child in Canada

• In Canada, child custody decisions are guided by the principle of ensuring the best interests of the child. The legal terminology has evolved, with “custody” now commonly referred to as “decision-making responsibility” under the Divorce Act and Children’s Law Reform Act. When one parent seeks full custody of their child or sole decision-making responsibility, the court carefully evaluates the grounds for full custody of a child in Canada to determine what arrangement best supports the child’s well-being, safety, and development.

What is Full Custody or Sole Decision-Making Responsibility?

Full custody, legally known as sole decision-making responsibility, means that one parent has the exclusive authority to make major decisions about the child’s life. These decisions include matters related to education, healthcare, religious upbringing, and overall welfare. Additionally, the child typically resides primarily with the parent who has sole decision-making responsibility, though the other parent may still have access or parenting time rights, as outlined in a custody agreement.

Grounds for Full Custody of a Child in Canada

The court evaluates several factors when determining whether full custody is appropriate. These considerations are centred on safeguarding the child’s welfare and ensuring their developmental needs are met. Here are the primary grounds that can support a case for full custody of a child in Canada:

1. Best Interests of the Child

This is the most critical factor in custody decisions. According to section 16 (3) of the Divorce Act and 24 (2) of the Children’s Law Reform Act, the best interest of a child considers the following factors:

• The child’s emotional, physical, and psychological needs, taking into account their age and stage of development and emphasizing the need for stability.

• The nature and strength of the child’s relationship with each parent, siblings, grandparents, and any other significant person in their life.

• Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent.

• The history of care provided to the child, assessing who has been the primary caregiver.

• The child’s views and preferences, giving due weight to their age and maturity unless they cannot be ascertained.

• The child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous heritage.

• Any existing or proposed plans for the child’s care.

• The ability and willingness of each parent to meet the child’s needs and provide proper care.

• Each parent’s ability and willingness to communicate and cooperate effectively, especially on matters affecting the child.

• Any history of family violence, assessing its impact on each parent’s capacity to meet the child’s needs and whether it is appropriate to require cooperative parenting.

• Any relevant civil or criminal proceedings, orders, or conditions that impact the child’s safety and well-being.

2. Parental Capacity

• The ability to provide daily care, emotional support, and a stable home environment.
• The ability to make sound decisions about the child’s education, health, and upbringing.

3. History of Abuse or Neglect

• Evidence of physical, emotional, or sexual abuse towards the child, the other parent, or others.
• Neglect, such as failing to meet the child’s basic needs (food, shelter, education).

4. Substance Abuse or Criminal Activity

• If one parent has issues with alcohol, drugs, or illegal activities that could endanger the child.

5. Mental Health Concerns

• Serious and untreated mental health issues that impair parenting ability.

6. Family Violence

• Any form of violence within the home, including towards the other parent, that could affect the child.

7. Parental Alienation

• If one parent attempts to alienate the child from the other parent or unduly influences the child against them.

8. Stability and Consistency

• Demonstrated ability to provide a stable and consistent environment, including routines and schooling.

9. Parental Cooperation

• The willingness and ability of each parent to support the child’s relationship with the other parent.

10. Child’s Preference

• Courts may consider the child’s preferences, especially if the child is older and mature enough to express reasoned opinions.

Types of Decision-Making Responsibility in Canada

1. Sole Decision-Making Responsibility (Full Decision-Making Responsibility)

• Formerly known as Sole Custody, this is when one parent has exclusive decision-making responsibility and primary parenting time. Courts typically come to this decision when the parents haven’t done well with co-parenting following their divorce or if the child has experienced a history of abuse or threat from one of the parents.

2. Joint Decision-Making Responsibility

• Formerly known as Joint Custody, this is when both parents share decision-making responsibilities. Both parents can jointly make major life decisions affecting the child’s care, and neither parent can make these decisions independently. Visitation and access arrangements can differ based on what serves the child’s best interests and the unique circumstances of the case.

Types of Parenting Time (Access) in Canada

1. Split Parenting Time: 

Formerly known as Split Custody, this is when parents have more than one child and the children are divided between parents.

2. Shared Parenting Time