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How Are Child Custody & Visitation Established?

Child and parent holding hands

If you have children and are in the process of separating from your spouse, understanding the law surrounding child custody and visitation will be very important. Winnipeg lawyers Cassidy Ramsay explain how child custody arrangements are decided, and issues that can arise.

How is a Custody Arrangement Determined?

When a relationship ends, and kids are involved, reaching a custody arrangement may happen in two ways:

1. Parents can negotiate and agree upon a custody arrangements themselves, outside of the court system, and enter into a written contract (usually called a “separation agreement”), setting out those arrangements.

2. If a mutually acceptable agreement cannot be reached, either parent may apply to have a custody arrangement decided under either The Family Maintenance Act or the Divorce Act, depending on the specific circumstances of the case.

It is important to note that, as a child gets older, he or she will have more of a say in what custody arrangement is preferable to him or her. Of course, where parents reach an agreement outside of court, it can be difficult, in practical terms, for children to express their wishes and be listened to. Where the process is contentious, and goes to court, the presiding judge may want to hear from older children about what their preferences are.

What are the Types of Custody Arrangements?

The two most basic forms of custody arrangement are sole custody and joint custody.

Sole Custody: In a sole custody arrangement, one parent essentially has the right to make all decisions about the child: what school s/he will attend, who his/her family doctor will be, what activities s/he will engage in, decisions surrounding medical treatments, etc. In addition, this parent will also be the child’s primary caregiver, and the child will typically live with that parent for the majority of the time.

In more cases than not, the other parent will have the right to spend time with the child, often taking the child every other weekend and/or on select weekdays — this entitlement to see the child or children on a regular basis is referred to as access rights or visitation rights. Note, both parents share the right to be adequately informed about matters involving the child (e.g., receiving copies of school and medical records, if requested).

Joint Custody: Joint custody refers to an arrangement where both parents jointly make important decisions about the child’s life. However, in order to avoid excessive litigation, a court order or agreement for joint custody will often grant one parent or the other the entitlement to make a final decision, where they cannot agree.

In some joint custody arrangements, the child spends equal amounts of time with both parents. More often, however, one parent will take the child the majority of the time. Practically, this generally provides a more stable routine for the child. Like in a sole custody arrangement, the other parent will typically be entitled to see the child at particular times, whether by agreement or as ordered by the court.

In a recent decision from the Manitoba Court of Appeal, the court upheld the lower court’s decision not to grant 50/50 time-sharing agreement, despite a joint custody arrangement. This decision was made for a variety of reasons but included the child was approaching school age, the distance between the parents homes, and the fact that the parents demonstrated difficulty cooperating and communicating. The distance would mean that a 50/50 time-sharing agreement would negatively impact the child’s ability to participate in school and community-based sports and recreational activities.

What Factors Does the Court Take into Consideration when Making a Custody Order?

When determining the appropriate custody order to make, the court will consider a variety of factors, including, but not limited to:

• The strength of the child’s relationship with each parent;

• The ability of each parent is to provide a stable home and routine for the child, and how much;

• Time the parent is able to dedicate to the child;

• Whether either parent struggles with alcohol or substance abuse, or may pose a threat to the child’s safety in any other way;

• Where each parent resides (this may weigh into a decision about specific access rights); and

• Both the respective parents’ wishes, and the child’s wishes.

What Happens if a Parent Violates the Custody Agreement or Order?

Legislation exists to handle situations where a non-custodial parent takes their child at a time that has not been agreed upon or ordered by the court. Under the Criminal Code of Canada, this is called abduction, and can carry a sentence of up to 10 years in prison.

The offence of abduction only applies where a child is under 14 years of age. However, as above, the offence may apply even where there is no court order for the custody arrangement, and where there is only a separation agreement in place. Essentially, the offence requires that one parent has taken the child without the other’s consent. A parent may have a valid defence to a charge of abduction if the parent reasonably believed that the child’s life, health, or safety was in jeopardy.

Interestingly, the law helps to prevent abductions by imposing certain obligations on child care facilities to become familiar with custody arrangement for each child. For example, these facilities are required to take appropriate measures to prevent a non-custodial parent from picking the child up, for example, unless the custodial parent has explicitly consented to this. Child care facilities must have adequate policies in place to ensure that these situations are handled in an appropriate and consistent fashion.

In some cases, interjurisdictional issues arise. In a recent Manitoba Court of Queen’s Bench decision, a mother was holding her two children in Canada, though the father lived in the United States, and the children were ordinarily resident there. The mother had previously lived together with the father and children in Iowa, but when the parties separated, the mother returned to Manitoba, leaving the children with the father in Iowa. Although the children were visiting the mother, by consent, their return to Iowa was expected. The court ordered that the children be returned to Iowa, such that an appropriate order with respect to custody could be determined there, rather than in Manitoba.

Speak to a Family Lawyer at Cassidy Ramsay Barristers, Solicitors & Notaries

If you are facing separation, and have children, speak to an experienced family law or divorce lawyer in Winnipeg as soon as possible to ensure that your child’s interests are protected. Call us for an initial consultation at 204-943-7454.


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