Family law – Child custody

In Quebec, a child does not choose alone where they will live. Their opinion is taken into account according to their age and maturity, but it is always the court that decides, based on their best interest and a set of factors. The choice cannot be made based on a single criterion such as housing, health, income or behavior deemed inadequate.

In Quebec, grandparents may request visiting rights if the parents refuse them without serious cause. Dialogue or family mediation is prioritized first. If these fail, an application may be filed with the court, which will decide based on the best interests of the child.

A custody agreement may be modified if circumstances have changed significantly. It is then necessary to demonstrate that the proposed change is in the best interests of the child.

Significant changes in circumstances:

• Major relocation of a parent;

• Major change in financial or professional situation;

• Physical or mental health issues of a parent;

• Change in the child’s needs (age, school, activities);

• Inappropriate behavior of a parent (neglect, violence);

• Inability of a parent to comply with existing terms;

• New spouse having a negative impact on the child.
  

Modification procedure:

• The modification can be made amicably through mediation;

• Otherwise, an application must be made to the court to modify the custody order;

• Burden of proof: demonstrate that the change is significant enough to affect the child’s interests;

• The involvement of a lawyer is necessary to prepare the evidence and provide representation.

Daily decision-making rights and parental autonomy :

• When the child is in your care, you may make decisions on routine matters, such as mealtimes, choice of clothing, etc.;

• The other parent may object only if these decisions endanger the child’s health, safety, or development.

Major decisions:

• In shared custody, you cannot make major decisions alone without consulting the other parent, such as:

• Education (choice of school, programs);

• Health (medical treatments, interventions);

• Religion and other spiritual activities;

• Major extracurricular activities.

Right to relocate:

• You have the right to relocate with your child provided that it does not significantly affect the other parent’s access rights;

• You have an obligation to inform the other parent of the decision to relocate and of the new address;

• If the relocation is significant (another city, region, country): court authorization may be required;

• The other parent may contest if the relocation is not in the child’s best interest.

Right to have a new partner:

• You may rebuild your life with a new spouse or partner;

• The new partner will not have parental authority;

• If the new spouse exhibits negative or harmful behavior toward the child, the other parent may request a modification of custody.

Custody is exclusive if the child spends more than 60% of the year with only one of their parents (i.e., more than 219 days per year). In the case of exclusive custody, the judge may grant the parent who does not have custody access rights (also called “outing rights” or “visitation rights”).

In Quebec, a parent may petition the court to order supervised parenting time for the other parent. Supervised parenting time is intended to be a temporary transition period during which the parent can prove they can be trusted to be alone with their child in the future.

In Quebec, there are primarily two types of custody: sole custody, where the child resides with one parent who has the majority of parenting time (more than 80%), and shared custody, where children spend equivalent time (40-60%) with each parent. Other customized arrangements also exist.

Sole custody or majority parenting time:

• One parent spends more than 80% of the custody time with the child (292 days per year);

• The child resides primarily with this parent, who makes the majority of daily decisions;

• The custodial parent has the right to make important decisions in the child’s life;

• May be granted in cases where the other parent presents risks (violence, neglect, addiction issues);

• The other parent generally retains visiting rights.

Sole custody with visiting and extended outing rights:

• The non-custodial parent obtains between 20% and 40% of the custody time;

• These rights allow the child to spend significant time with the other parent;

• May include telephone calls, vacations, excursions, and weekend visits;

• Maintenance of the parent-child bond despite the separation.

Shared custody (equivalent parenting time):

• The child spends between 40% (146 days) and 60% (219 days) of the time with each parent;

• Equitable or quasi-equitable sharing of parenting time;

• Requires a good capacity for communication between the parents;

• Both parents must live within reasonable proximity;

• Requires both parents to demonstrate their ability to ensure the safety and well-being of the child;

• Ability to properly care for the child financially and emotionally;

• Favored by the courts when circumstances permit.

Other possible arrangements:

• Split-time custody (50/50);

• Customized arrangements based on the specific needs of the family;

• Alternating schedules (weeks, 2-2-3, etc.).

How judges decide on custody arrangements:

When deciding on custody arrangements, judges always determine what is in the best interests of the child. Among the factors considered by the courts:

Needs and characteristics of the child:

• The age and specific needs of your child;

• The mental and physical health of the child;

• The child’s preferences (depending on age and maturity);

• The maintenance of stability in the child’s life.

Parental capacity and the situation of each parent:

• Your financial capacity and that of your ex-spouse to meet the child’s needs;

• Your mental and physical health and that of the other parent;

• The prior involvement of both parents with the child;

• The time both parents can devote to the child;

• The impact of the parents’ lifestyle on the child.

Family relationships:

• The child’s relationship with you and your ex-spouse;

• The child’s relationship with other family members (siblings, grandparents);

• How to keep all children together if there is more than one child (maintaining the sibling group);

• A parent’s willingness to help the child have a good relationship with the other parent.
  

Safety and well-being:

• The question of whether one of the parents represents a danger to the child’s well-being;

• Cases of domestic violence, neglect, or substance abuse;

• Ability to provide the child with the security they need.

Capacity for collaboration:

• The parents’ ability to speak to each other without arguing;

• Willingness to cooperate in the child’s interest;

• Geographic proximity of residences.

In such a sensitive context, the assistance of a lawyer can be crucial for the child’s well-being. Whether it’s to establish custody arrangements, determine your chances of success, or modify an existing agreement, we can advise you at every step of the process.

Expertise and Protection of Your Rights:

• A family law attorney possesses in-depth knowledge of the laws and legal procedures specific to Quebec;

• They ensure that your rights and those of your children are fully protected and respected.

Principle of the Child’s Best Interests:

• Quebec legislation on parental custody primarily aims to serve the child’s best interests;

• This principle can sometimes be overlooked amidst conflicts between parents;

• Our lawyers prioritize amicable solutions whenever possible.

The process usually unfolds as follows:

Initial Consultation:

• In-depth evaluation of your family situation;

• Legal advice on the best course of action;

• Explanation of your rights and obligations.

Family Mediation:

• Assistance in mediation to find amicable solutions;

• Avoiding litigation and stress for children;

• Promoting the child’s best interests;

• Collaborative and negotiated solutions.

Drafting Custody Agreements:

• Assistance in drafting custody agreements that respect everyone’s rights;

• Prioritizing the child’s needs;

• Detailed custody and visitation schedules;

• Court homologation of agreements.

Legal Representation:

• Court representation for all matters related to custody and parental time;

• Hearings, trials, motions;

• Pleading before various instances (Superior Court, Court of Appeal, and Court of Quebec);

• Vigorous defense of your parental rights.

Modification and Review:

• Assistance in procedures to change parental time arrangements;

• In case of a significant change in circumstances;

• Motions to modify visitation rights.

Establishing and Contesting Visitation Rights:

• Advice and representation to establish, modify, or contest arrangements;

• Protection of the parent-child bond.