Separation among couples in Quebec is nothing new and the statistics on the number of children whose parents have separated or even divorced continue to rise. It is, therefore, not surprising that so many parents find themselves faced with the task of determining custody and support for their children without having the slightest idea of how such a process works.
Fortunately, you don't have to go through it alone. Family law attorneys are extremely qualified legal professionals who will be able to represent you in a custody and support dispute. Better yet, they will try to find some common ground with your ex-spouse to save you the expense of a bitter and lengthy legal battle.
JuriGo explains the main criteria that are taken into account in determining custody and the amount of support to be paid!
Who decides which parent gets custody of the children?
Initially, the parents must try to reach an agreement between themselves. When they are still in a relationship, parents have equal rights to their children and it is their responsibility to find common ground regarding custody after separation.
Unfortunately, this is not always possible, and in the event of a disagreement, it will be up to the court to determine the custody arrangements.
You should know that in case of a disagreement, both parents have the right to see the children whenever they want as long as a judge has not established the conditions of custody. However, this right must be used in good faith by both parents and they must avoid, at all costs, compromising the best interests of the child in exercising their custody rights.
In addition, the parents are equal and both have the right to get custody of their children. The idea that the mother has an advantage over the father in obtaining custody is a common belief but it is not true. In reality, both parents have an equal right to obtain joint custody and even sole custody of the children when the circumstances warrant it.
Is it a good idea to let the other parent take care of the children while awaiting the court’s decision? W hen the separation is acrimonious, a parent may be tempted to leave the children to the spouse until things calm down and while waiting to go before a judge.
This is not an ideal solution. The stability of the children is a fundamental principle in the determination of custody and the parent who lets his ex-spouse take care of the children during this waiting period creates a disadvantage for himself.
Of course, stability is not the only factor to consider, since the children's needs and their best interests are much more complex concepts.
Did your ex-spouse force you to agree to custody arrangements after the breakup? It is possible to request an emergency hearing before a judge to obtain a safeguard order. This is a temporary decision that will be valid for a maximum of 6 months while a judge sets the permanent conditions.
Contact JuriGo if you would like to obtain a safeguard order with the help of a family law attorney now!
Joint vs. Sole custody: How does the judge determine custody time?
The parents can agree on the conditions of a joint or sole custody arrangement. However, when the conflict surrounding the separation prevents them from making a mutually acceptable decision, the judge will have to decide and stipulate the terms of the custody himself.
What criteria does the judge use to decide custody? In family law, the judge always refers to the same key principle: "the best interests of the child". All family decisions must be made to promote the well-being, development, and fulfillment of the needs of the child. The child is, therefore, at the center of the evaluation of the best custody conditions. For this reason, the following criteria are taken into consideration:
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Age of the child
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Stability
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Moral and emotional needs
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The presence of brothers and sisters
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The situation of each parent
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The relationship between the parents and the child
How does the judge decide between sole and joint custody? The judge's role is to consider both types of custody and choose the one that is in the best interests of all the children involved. Oftentimes, the judge will choose joint custody when both parents are available, live nearby, are both capable of caring for the children, and able to communicate properly.
What is the difference in custody time? Joint custody means that the children spend between 40% and 60% of their time with each parent, representing a minimum of 146 days per year per parent. On the other hand, in a sole custody situation, the children spend more than 60% or 219 days per year with one parent.
However, you should know that the right of access can be requested by the parent who does not have sole custody of the child . Rights to access can take many forms, including short visits, outings, vacations, or simple phone calls.
However, certain criteria are not important in determining custody but after a difficult relationship and separation, they can be used as knives when it comes to negotiating custody and child support. You must remember that certain facts have no probative value in the eyes of the judge.
As we have mentioned many times before, it is the best interests of the child and nothing else that guides the judge in his decision. Thus, the fact that adultery was committed, or that one of the spouses has a new life partner, or other similar information is of no importance unless it compromises the best interests of the child.
Does the child's opinion have an impact when determining custody?
In the rush to separate, parents sometimes forget to take into account the opinions of the primary stakeholders - the children. Fortunately, the law gives children certain rights that vary according to their age, maturity, and capacity to discern. This means that the older the child, the more weight the judge will give his or her opinion.
Generally, a young child under the age of 8 will not have much choice as to where he or she will live. After that age, it is up to the judge to assess the child's maturity to see if he or she understands the implications. When this is the case, the judge will give significant weight to the child's wishes but will not necessarily bend to them.
Can a teenager decide which parent he or she wants to live with? The rule of law remains the same in that the best interests of the child, or teenager, are paramount. However, the opinion of a teenager who wants to live with one parent rather than the other will almost always be granted by the judge unless there is a serious reason not to do so.
Did you know that children can sometimes be represented by a lawyer? This exceptional measure applies especially when the parents lose sight of the child's needs during their conflict and the child now needs a legal representative in order to have his or her rights respected. The court can order this representation when it considers it necessary, or the child can request it.
Why must a parent pay support?
Under Quebec law, parents have an obligation to "provide support" to their children. This obligation is carried out either in kind or in money. It is considered to be in kind when the parents are still living together and each pays the expenses necessary to support the child.
In the event of a separation, the fact that the child spends more time with one parent creates an imbalance and additional expenses for that parent. This is what child support is for. It is put in place to compensate for the other parent's share of expenses and to ensure that the child maintains a similar standard of living if both parents were together.
Can you be required to pay child support even if custody is shared equally? Yes! Since child support is determined by the Quebec Model for the Determination of child support payments , support is calculated not only by the amount of custody time but also by the annual disposable income of each parent. One parent may have to pay an amount to the other parent as a form of compensation, even if they share custody equally.
Frequently asked questions about determining support payments in Quebec
Is there a difference between married and common-law couples when it comes to paying child support?
There is no difference in the payment of child support between married and common-law couples. In either case, parents are required to pay child support according to the established pattern.
However, married couples may also be required to make support payments to their former spouses based on their respective incomes, which may not apply to common-law spouses.
Can I stop paying child support when the child turns 18?
No, not automatically! The obligation to provide support, and consequently, the obligation to pay support, continues beyond the age of majority. Thus, as long as the child is in need, the parents are obliged to provide support, and only when the child has reached a certain level of financial autonomy can the parents cease support payments.
Can a parent waive support payments?
No. The right to receive support payments is a provision of public order. This means that a parent can never refuse to receive payment in advance by contract. However, once the right to demand support has arisen, there is nothing to prevent him or her from waiving the right to receive support, but in no case can he or she do so in advance.
Does insolvency release you from your obligation to provide support?
No, not even bankruptcy! The support obligation is not extinguished at the age of majority, it cannot be waived in advance, and even bankruptcy does not eliminate it. This should demonstrate the importance that the law attaches to this obligation and illustrates the fact that no one can escape the payment of support.
Is it possible to change the conditions of custody of the children once established?
Yes, when there are significant changes in family circumstances along the way, it is possible to change the terms of custody. This is the case, for example, when a parent moves away or when a child who has become more mature requests a change of custody. The parents can put in place an informal agreement or request the court to amend the agreement.
What are the conditions for changing the amount of support payable?
Since the payment of support and custody time are intertwined, changing custody can be grounds for adjusting support as well. When the parents agree, it is not necessary to go back to a judge and the parents can apply to the Service administratif de rajustement des pensions alimentaires pour enfants (SARPA).
Is family mediation a good option for custody and support?
Letting the court set the criteria for your child custody should be a last resort such as when agreement with your former spouse is truly impossible. When there is a possibility of reaching an agreement, you can choose family mediation services.
Many lawyers now offer family mediation services, recognizing that a judge's determination of custody is a solution that leaves both parents bitter about the process. Family mediation gives you the opportunity to:
Prepare a personalized agreement by mutual consent. Again, the judge relies on the best interests of the child in making the decision, not the whims of the parents. Thus, during a family mediation session, the parents receive a neutral mediator who can help them preserve this same interest, but by considering the needs and preferences of each parent.
Preserve a good relationship with your former spouse/partner. Seeing your parent engage in a court battle for custody is a difficult experience for any child. It doesn't help preserve good relations between the parents either, and this is something that family mediation helps to avoid since it promotes dialogue rather than conflict.
Avoid high court costs. Mediation is a much less expensive option than a lengthy trial to determine the terms of custody. You'll save on court costs and lawyers' fees by opting for mediation. Why choose conflict when there is a less expensive solution?
JuriGo can refer you to several of its partner lawyers who specialize in family mediation! They will be happy to help you towards a peaceful resolution of your separation and joint custody issues.
Get in touch with JuriGo to find a family law attorney!
Children are always the biggest losers in a prolonged custody and support dispute. Why put them through this when there are plenty of family law attorneys ready to help you assert your rights and reach a fair custody agreement?
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