How Do I Get Custody of My Kids?

Discover the terms and steps for arranging parenting responsibilities after separation.

How do I get custody of my kids?

Let’s start this by a language discussion. Custody. As a word, it is no longer in the law of Ontario. Before we go into what it is called now, let’s clarify what it was. We commonly hear that question, “how do I get custody?”. Most of the time, the person asking is wanting to know what they can do to get the most physical care time of the children. Even under the old definition, the language was not what the law meant. The person was asking something different as compared to what the law meant.

Custody used to mean who decided the significant life decisions for a child. It was not who provided the physical care. It’s a very confusing word as “custody” can also mean having someone physically in a secure place – such as a person who is arrested by police is taken into “custody”. 

The wording of the law has now changed in the context of children and parents who separate. In short, forget the word custody. We no longer use it. Which then raises the questions, what do we say now? How does it work? And “How do I get whatever it is now for the kids?”

Here’s how it works now:

There are two things that need to be to be sorted out when you separate and have children under the law in Ontario. The first thing is “decision-making responsibility” for your children. This is what it says it is. Who decides things for your kids. When we say things, we mean the more significant life issues that will direct the upbringing of your children. Not whether little Johnny goes to a friend’s house after school for a play-date. It means who decides what language/culture your child will be raised in, what school they attend, what religious upbringing/rituals they will be raised in, non-emergency medical decisions and essentially all the key decisions such as significant extra-curricular activities (that means things like rep-hockey/3 times a week/tournaments/travel as opposed to a short 6 week series of swim lessons done once) that impact how that child will be raised. The law does not assume the parents will jointly do this; it is simply an assessment of what is in the best interests of the child.

The second point to resolve is the schedule of time that a parent will be providing care to a child. The law labels this “parenting time” which makes a lot of sense as it is the time that a child spends with each parent. It includes time that a child may be in school or daycare, but one parent is responsible should a child have to go home.

To answer the question “how do I get parenting-decision making responsibility?”, the answer is you must determine what is in the best interests of the child. You can have that resolved by an agreement directly between the parents on the key issues (education decisions/language decisions/medical etc.). When you do an agreement, it must be a written domestic agreement in Ontario. Typically, we see parents including these terms in a Separation Agreement as they should also address the question of child support. 

If you cannot agree with the other parent to come to a Separation Agreement, then you may need to bring the matter to a court.

A court will assess a list of factors if the two parents cannot resolve parenting decision making responsibility or what the schedule of parenting time will be.

The list of factors includes the child’s needs given the child’s age and stage of development, history of care, plans of each parent for raising the child and any family violence to name but a few of the factors. There are more items on the list.

You need to become familiar with all of those factors that a court will review, and should you need to go to a court to have this issue settled, you will need to detail for the court the answers to all the factors a court will be required to consider.

If you need court, you need to decide whether you need to be in Provincial Court (there are some areas in Ontario that do not have unified family courts) or a Superior Court. Then you begin with the paperwork needed. The forms are listed on the government’s site – https://stepstojustice.ca/legal-topic/family-law/ Steps to Justice. 

We are here to help you with any of the forms, to explain what you need to fill in and how. We can edit things for you and coach you through what you need to say in court.

Just book a consult and we can help you as you need.