Parents can themselves settle the issue of child custody if they can come to an agreement. Otherwise, the court will determine who gets custody, taking into account the children’s interest, the family’s specific situation, and the rules established by law.

The legal procedure you must use when asking the court to determine custody depends on your marital status:

• De facto spouses proceed using a “motion for child custody”;
  
• Married spouses proceed using a “petition for divorce” or separation from bed and board;
  
• Spouses joined in a civil union proceed with a “motion to dissolve a civil union”.

Either parent can file a “motion for provisional measures” during an application for divorce, separation from bed and board, or a motion to dissolve a civil union. A provisional judgment temporarily settles issues – such as custody – that cannot wait until a final judgment is rendered.

In addition, an “interim” judgment for a limited period can be obtained in real emergency situations. The interim measure will normally apply until a provisional judgment (or final judgment in the case of a motion between de facto spouses) is rendered. An interim judgment can usually be obtained within three weeks of the date on which the motion was signed.

To learn more about legal proceedings, you can consult the section in Côtécour on the Superior Court, Family Division and the Infosheet entitled The steps involved in a divorce or separation.

In theory, parents are entitled to see their children where and when they want until a judgment has been rendered. Both parents are naturally entitled to this right, which must be exercised in the child’s best interest.

This right should not be abused and each spouse should consider the other’s rights so as to maintain a good relationship between the parents. An agreement about the children should be reached as quickly as possible to ensure each parent’s rights are respected. Once again, the child’s interest should be the dominating consideration during any negotiations. You should also be reasonable and avoid adding fuel to the fire.

There may be other issues involved if one of the parents has agreed not to come near the other parent’s residence, if a judge has ordered the parent to stay away, or where there are major disagreements or conjugal violence. The answers above must be adapted to individual situations.

One or both the parents can ask the Superior Court to grant access rights to the children (when, how often, where) adapted to their situation if the spouses cannot reach an agreement. The first step is to seek a judgment from the Superior Court. This type of request is considered urgent: an interim order can be rendered within a matter of days.

If the ex-spouse’s attitude persists once an order has been issued, three possible solutions exist depending on the urgency of the situation:

• File a complaint with the police for kidnapping;
  
  
• Depending on where you are in your proceedings, you can file a motion to vary the provisional measures or final judgment and ask for custody of your children. You can also present this as an urgent motion;
  
  
• File a motion for contempt of court and ask that the ex-spouse’s behaviour be punished. The sentence in this type of case ranges from a fine to a prison term, which is somewhat rare.

Remember that the court will take into account the parent’s intent to maintain contact between the child and the other parent when deciding on custody. A systematic and unjustified refusal to give the other parent access to their children may be a determining factor in the court’s decision.

In reality, it is the children who are entitled to a relationship with both their parents. It is against their interest to deprive them of this, and the children’s interest is the fundamental principle of any judgment about them.

Still, in some situations – violent circumstances, for example – the child’s interest requires that they have no contact with one of their parents.

It all depends on the circumstances. The residence where they live is the family residence if the spouses are married. The court can order that one of the spouses have the use of the family residence alone. If there is no such judgment, both spouses are at home in the residence. Each one is legally entitled to have access to it, regardless of who is the lessee or the owner. The situation may differ if one of the spouses threatens the other’s security. The threatened spouse can decide to leave the residence or call the police and have the other spouse removed.

If the spouses are not legally married, the concept of the family residence does not apply. It is up to the spouse who owns or rents the dwelling to decide who does or doesn’t enter. The other spouse is simply considered a guest. The owning or renting spouse can withdraw the invitation at any time and ask the police to remove the “intruding” spouse, particularly if this person is threatening or violent. The renting or owning spouse must exercise this right reasonably where the spouse behaves correctly. In fact, the police should not intervene if the removal is abusive (for example, to remove one of the spouses on Christmas Eve after they have lived together peacefully for years).

The spouse is committing an offence if he or she returns without permission once the invitation has been withdrawn, or forces the door open. To learn more, consult the Infosheet entitled Main offences against the home.

Both spouses are entitled to remain if they both own or rent the residence. The situation may differ if one of the spouses threatens the other’s security, in which case the threatened spouse can leave the residence or ask the police to remove the threatening spouse.

This being said, constantly watching the other spouse, continuously calling or insisting on visiting the residence may be considered an offence, such as harassment or intimidation, even if the person owns or rents the place in question. To learn more, you can consult the Infosheet entitled Main offences against the person. It is best to be patient, to warn the other spouse and get permission from your spouse before entering the residence, regardless of your legal position.

One of the spouses may find this situation frustrating, but the law prohibits citizens from seeking justice on their own. Use the existing legal procedures if, for example, you want access to your children or to use the residence. To learn more, consult the Infosheet entitled Instituting legal proceedings.

Finally, the situation is totally different if one of the spouses is prohibited by a condition of release from going to, or approaching, the other spouse’s residence, regardless of the spouses’ status. To learn more, you can consult the Infosheet entitled Conditional release.

A judge could decide to keep the children with the spouse if they have been with her for several months. But this is not the only factor the court will examine. Other considerations include:

• each spouse’s parental capacity;
  
• satisfying the child’s needs;
  
• stability in the child’s environment;
  
• each parent’s availability;
  
• the desire to maintain contact between the child and the other parent;
  
• the location of their respective residences;
  
• the child’s age;
  
• the child’s wishes.

A spouse in this situation should institute legal proceedings as discussed above quickly. The more time goes by, the more likely the court is to maintain the “status quo” in the children’s interest.

Yes. You should even encourage your child to return to the other spouse. The non-custodial parent must respect the judgment if the other parent has legal custody. If one parent has legal custody and the other parent gives in to his child’s desire, that parent’s access rights may be revoked or subject to the supervision of another adult, either at the parent’s residence or in a centre specially set up for this purpose.

When a parent fails to return a child whose custody has not yet been decided, this can be used against the parent when the court eventually does determine custody. Any such act must be well-justified.

It is a good idea to investigate the true reasons behind the child’s refusal, whether or not there is a custody order. Is he acting out of pure capriciousness, or he is afraid of not being able to see one of his parents again, or is he being mistreated? A professional may help clarify the real problem.

A parent can inform the Director of Youth Protection (DYP) if convinced the child’s health or safety is compromised at the other parent’s home. An investigation will be carried out.

In addition, the parent can also file a complaint with the police if the child claims, for example, the other parent sexually abused or mistreated him.

In both cases the DYP and the police will work together on the file to determine the most appropriate solution.

Remember though that filing a false report with the DYP and the police can backfire against the parent who filed it only to cause trouble for the ex-spouse.

Yes. You can ask that custody be varied and adapted if there is a major change in the children’s or parents’ situation. In other words, custody and access are never “carved in stone” for the obvious reason that the people and circumstances involved can always change.

You can change custody by filing a motion to vary the provisional measures or final judgment, depending on what stage you are at in the proceedings. Once again, any decision involving a child must be taken in his best interest.

Unless you and the other parent have reached an agreement, or there is a judgment authorizing you to do so, it’s best to avoid picking up the children at school or anywhere other than at the agreed time and location. If you do pick them up, you could find yourself facing criminal charges of kidnapping. In addition, the child is the responsibility of the person in charge of the school or daycare, and they can refuse to let the child leave with the non-custodial parent.

Depending on a parent’s actions, a judge can, in the child’s best interest, limit or even cancel access rights granted in a judgment or impose supervised access rights.

Once again, this situation may be frustrating, but the law does not allow citizens to seek their own justice. Legal means exist if you want the right to see your children.

Both parents are responsible according to their respective income and other financial means. The de facto or legal custodial parent is not exempt from the obligation to contribute financially to their needs. The other parent must pay child support to the custodial parent, who is responsible for managing it.

Nothing prevents the parents from agreeing that specific expenses will be paid for in lieu of child support, provided that such an agreement is reasonable and is equivalent to the amount of support. The court must ensure such an agreement is reasonable before it can be formalized, otherwise the court must refuse to ratify (formally accept) it. If a support order has already been issued you must ask the court to vary the order to change the manner in which the parent contributes to the child’s needs.

Even if the parents share custody, one parent may still have to pay support to the other one where there is a considerable difference between their incomes or means. In other words, shared custody is not a way to avoid paying child support.

In theory, an agreement or a judgment should say that the other parent pays the parent in this situation back for the expenses that the other parent should have covered. This issue is normally settled in the final judgment.

In the meantime, you must be reasonable and establish your priorities before you decide to stop paying support. If one of the parents has a hard time meeting these financial obligations, the parent should think about what needs to be paid to avoid losing a major asset or upsetting creditors, with whom arrangements can be made.

You can file a motion in Superior Court if the children are with one parent and the other parent refuses or neglects to pay his share of their needs. The court can issue an interim judgment addressing child custody and support in a matter of days or weeks, and then the Minister of Revenue will be responsible for collecting support and sending it to the beneficiary parent. It’s better to act quickly because, except for special cases, support is retroactive. This means that the amounts are calculated as of the date the other spouse received a copy of the motion.

Child support first of all covers the child’s basic needs, including food, transportation, clothing, leisure, etc. The Quebec model groups these expenses under the heading “basic parental contribution”.

Support can also include certain expenses that vary from family to family, such as daycare and post-secondary education expenses, as well as “special” expenses, such as private school. All these expenses are added on to the basic parental contribution and are divided between the parents in proportion to their respective means.

Contrary to popular belief, the parents’ financial obligation does not end when their child becomes an adult. Today, it is not uncommon for a young person to live at home with his parents several years after turning 18, giving him the time to finish his studies and find employment allowing him to earn a decent living.

As a result, the parent with whom the child does not live must continue to contribute to his needs by paying support or as otherwise agreed (for example, paying school tuition).

Nevertheless, the parents’ obligation is not unlimited. A child cannot expect his parents to financially support him forever, unless he is afflicted by illness or a handicap preventing him from attaining financial independence. He must demonstrate he is studying seriously and is often required to contribute to his own needs by finding a summer job, for example.

The rules applicable to minor children can be used as a guideline to determine support for a child of full age. The amount is then adjusted according to various factors, such as the child’s income, type of studies, etc.

The courts have not definitively resolved the issue of whether support should be paid to the child himself or the parent with whom he is living. In reality, however, whether it is paid to the child or the parent changes nothing for the payor, at least financially.

To learn more, you can consult the Infosheet entitled Support for adult children.