Either of them. At the time of the breakup, both parents have the right to custody of their children because they are equal under the law.

One parent does not have more right than the other to live with the children. This means that a parent cannot decide to leave with the children if the other parent does not agree.

At the time of the breakup, it is preferable that parents agree on the custody arrangement that is best for the children. If they cannot agree, they can make an urgent request to a judge for a temporary ruling on custody.

If it is an abduction (kidnapping by a parent), you can file a complaint with the police. Depending on the type of abduction (local, interprovincial or international), there are certain steps to be taken. For more information, see the kit on the website of Services Québec entitled "Enlèvement d'enfant par l’autre parent" (only available in French).

If your situation is more similar to a domestic dispute rather than an abduction, filing a complaint with the police will not likely be successful and may unduly traumatize your children. Remember that at the time of a breakup, you do not have more right than the other parent to keep the children with you. The police will not forcibly remove the children from the other parent to give them to you.

In these circumstances, it may be preferable to ask a judge to render an urgent decision on the custody of the children. The judgment, which can be obtained within a matter of days, will determine your temporary custody arrangement.

Here is an example depicting when it would be better to ask for an urgent decision:

Lilianne announces to Maxime that she is leaving him and that she is taking the children with her to live with her parents. Maxime steadfastly refuses to live apart from the children. The next day, after work, he finds that Lilianne has in fact left with the children. Maxime speaks to the children on the phone that night. He knows that they are not in danger and that they are just a few blocks from his home. In such a situation, the ideal for Maxime and his children is to make an urgent request for a judge to render a decision on the custody of the children. In his request, he can mention that Lilianne left with the children without his agreement, showing the judge that she was taking the law into her own hands and that she was not acting in the interest of the children.

Of course, the other parent may have a good reason to leave with the children without permission. A case of domestic violence is a good example.

In all cases, the judge will review the whole situation and make a decision in the best interest of the children.

Several options are available. Here are a few:

1. Attend family mediation sessions togetherYou can attend a certain number of free family mediation sessions. With the help of a mediator, you can try to negotiate an agreement on custody that meets both your needs and those of your children.
   
   If the age of your children permits, the mediator may suggest that they participate in the mediation.
   
   The mediator's role is to help you find a solution. He must remain neutral and not take sides. He has no power to impose a solution on you (unlike the judge, for example).
   
   To learn more about mediation, consult our Infosheet Free Family Mediation.
   
   
2. Negotiate You can hire a lawyer and give him the mandate to negotiate an agreement on custody of the children. The other parent may decide whether or not to be accompanied by a lawyer. You do not have to be present during the negotiations.
   
   For more information on negotiation and other means of resolving conflict, consult our Infosheet Alternative Ways for Settling Disputes.
   
   
3. Apply to the Court Any request concerning the custody of a child must be made to the Superior Court. A judge will decide the issue of custody for you.
   
   You can also ask the judge to specify the schedule, the number and location of parental visits.

As a general rule, as long as a judge has not made a judgment on the custody of the children, the parents have the right to see them when they wish. Obviously, this right belongs to both parents and must respect the best interests of the children.

Examples of what is not in the children’s best interests?

• Parents who fight at school or daycare about who can take the children.
  
• A parent who shows up at the other parent’s home to take the children by force, and who bangs on the door and rings the doorbell repeatedly.
  
• A situation that has deteriorated to the point where the police must be called.

To prevent conflicts, each parent must exercise their rights without abusing them, taking into account the rights of the other parent.

It depends on what you mean by "make a decision about custody." If you just want to see them a little more often, it will not play against you.

For example, the children live with Lilianne. Maxime thinks that it is appropriate that they continue to live with her, but he would like to see the children two hours more per week. Maxime wants to have more "access" to the children without changing the custody as such. In this example, the fact that they live with Lilianne should normally not affect the judge's decision.

However, if you want equal custody (sometimes referred to as “shared custody” or “joint custody”) or you want to be the only parent to have custody (“sole custody”), the answer differs depending on your situation:

1. The children have been living with the other parent for some time
   
   The fact that the children have been living with the other parent for some time will play against you. That is because the judge considers the stability of the children an important factor when rendering a decision on custody. The more time passes, the more a judge will have the tendency to maintain the arrangement that you have accepted or tolerated.
   
   Also, it may be difficult to convince the judge that leaving the children with the other parent is not in their best interest, if you did not previously act quickly to change the situation.
   
   It is, therefore, important to know that if the other parent imposes their way of seeing things on you with respect to the custody of the children, it is up to you to act. As of the breakup, you have the right to ask a judge to make an urgent decision on the custody of the children. Remember that the more time passes, the less your situation will be characterized as "urgent", and the less willing a judge will be to make an urgent decision to change custody.
   
   However, the stability of the children is not the only factor considered by the judge. There are also the children's needs, the ability of each parent to meet their needs, the wishes of a child mature enough to express his preferences, etc. It is therefore possible that the judge decides to give you custody of your children even if they have been living with the other parent since the breakup. You can consult a legal professional for legal advice on your particular situation.
   
   
2. The children have been living with the other parent for a very short time
   
   If that is the case, the fact that they have been living with the other parent will not play against you. But, you must act very quickly so as not to find yourself in the situation described above.

It all depends on the circumstances.

Parents joined by marriage or civil union

As a general rule, you can enter and leave the house as you see fit even if you're not the owner or tenant, unless:

• you have agreed to give exclusive use of the house to the other parent.
  
• the police have asked you to leave the house and you have agreed not to return.
  
• you have undertaken to keep the peace and your undertaking prohibits you from approaching the house.

Please note that to put an end to an uncomfortable situation, each of you can ask a judge to grant you the exclusive use of the house. After the judgment is made, the excluded parent can no longer enter the house without permission.

Unmarried Parents

The other parent is the owner/tenant
If the house belongs to (or is rented by) the other parent, you cannot enter in order to see the children. As the owner (tenant), the other parent is the one who decides who can and cannot enter. You are simply considered as a guest and the other parent may withdraw the invitation at any time. You can face criminal charges if you do not respect the choice of the other parent to exclude you from his home. For more information, consult our Infosheet Offenses Related to Dwellings.

Of course, this does not mean that the other parent can lock the children up in his home to prevent you from having any contact with them! Remember that you can resolve the situation of the children by coming to an agreement with the other parent or by applying to a judge as soon as possible.

You are co-owners or co-tenants
If you are co-owners or co-tenants of the house, you can come and go as you please. However, you do not have free access to the house if:

• you have agreed to give exclusive use of the house to the other parent.
  
• the police have asked you to leave the house and you have agreed not to return.
  
• you have undertaken to keep the peace and your undertaking prohibits you from approaching the house.

Please note that you are not obliged to remain co-owners of your house. A judge has the power to put an end to this situation (for example, by ordering the sale of the house and the sharing of the proceeds). To learn more, read our Infosheet Common Law Couples and Undivided Co-ownership. The judge cannot, however, intervene in this way if you are co-tenants.

No. Both parents must contribute to the needs of the children according to their income and their other financial resources. In Quebec, there is a form that, when properly completed, specifies the exact amount that a parent must pay the other parent. We call this amount "child support".

• It is the parent who has the children with him less than 40% of the time who must pay child support to the other. The law considers that this parent does not have custody of the children.
  
  
• If the parents share custody (each parent living with the children between 40% and 60% of the time), the parent with the highest income must pay child support to the other.

To find out the amount of child support, you can fill out the form alone or hire a legal professional or mediator to complete it for you. Then, you can claim this amount from the other parent. If the other parent refuses to pay, you can apply to a judge. The judge will ensure that the children’s right to be financially supported by each of you is respected.

To learn more on the subject of child support, see our Infosheet The Quebec Model For Determining Child Support.

If you are married and your spouse lives outside of Quebec, other rules may apply. To learn more, read our Infosheet The Federal Method of Calculating Child Support.

What you can get is a reimbursement of the amount of child support that the other parent should have paid you. To do so, you must apply to the court and ask for it.

In general, the child support owed to you is calculated from the date on which the other parent received:

• your demand letter (see our Infosheet Demand Letters); OR
  
• a copy of your application to the court.

For example, the children are living with Lilianne. Lilianne asks Maxime to pay her child support of $500 per month. Maxime refuses to pay anything. Lilianne makes a request to the court. Three (3) months later, the judge rules in Lilianne’s favor. He orders Maxime to pay child support in the amount of $500 per month. In addition, he orders him to pay Lilianne the sum of $1,500 for the three (3) months that elapsed since Maxime received Lilianne’s court application (3 x $500 = $1,500).

If it is a divorce, the judge may decide that it is necessary to go further back in time, depending on the particularities of your situation. As a general rule, he will not go back beyond three years.

Even if it is not a divorce, the judge can go further back in time (up to a year before your court application) but you must prove that you could not have acted sooner.

Remember that it is important to act quickly if you are in this type of situation. In fact, the judge may deny your request if he decides that you could have acted sooner.