Over the course of history, children were often seen as the property of their father, and upon divorce, mothers had limited access to their children. By the mid 1800’s under British law, young children of divorcing couples were usually awarded to their mother (the “tender years doctrine”). Many jurisdictions have moved away from these presumptions and now have gender neutral laws regarding custody, with an emphasis on the best interests of each child. In BC, the “best interests” test is the only consideration for courts when deciding parenting arrangements for children whose parents do not live together.

What does shared custody mean?

In general, shared custody means that a child spends roughly equal amounts of time in each household. In Canada, under the Federal Child Support Guidelines, shared custody means that each parent has the child in his or her care at least 40% of the time over the course of the year. Sometimes this means a 50/50 arrangement, but this is not always the case. A shared custody arrangement can be set up in any way that works for the family, with two of the most common arrangements being alternating weeks or a 2-2-5-5 schedule (one parent has Mondays and Tuesdays; the other parent has Wednesdays and Thursdays; the parents alternate weekends).

Do Judges usually order shared custody?

Judges in BC deciding cases under the Divorce Act must consider only the best interests of the child. This evaluation must give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child (the “maximum contact” principle).

Under BC’s Family Law Act, Judges are not permitted to apply any presumptions and must only consider the best interests of the child.

Statistics Canada’s 2011 General Social Survey on Families reported that in the preceding 20 years, approximately 70% of children resided primarily with their mother after separation or divorce; 15% resided primarily with their father; and 9% reported living with both parents. Anecdotally in BC, shared custody has become increasingly common. However, just because shared custody works well for one child does not mean that it is always the best arrangement. For instance if one parent lives in Clayton Heights, Surrey and the other parent lives in Vancouver, or if the parents have a very high conflict relationship, shared custody may not be best for the child.

Judges and parents must always do what is best for the child and must keep in mind practical considerations such as a child’s school, activities, emotional attachment to family members, and wishes.

Do I need a lawyer?

An experienced family law lawyer will help guide you to make the right decisions for your children. There may be ramifications to child support and government benefits and credits when there is shared custody. Call Pamela J Rowlands Law Corporation for a low cost consultation!