Whether you are married or not, being parents of children involves many legal obligations despite the breakdown of your relationship.
Many important decisions have to be made such as: who will have custody (or parenting time)? How will vacation time be divided? How will decision-making be shared?
Our lawyers are experienced, knowledgeable and equipped to help you navigate through one of the most challenging seasons your family may face.
Many parents consult lawyers regarding the issue of child custody. When a couple decides to separate, the parents must continue to make decisions together in the best interests of the children who were born from their union. Several studies show that children whose parents get along during and after the separation have fewer negative consequences than children whose parents are in a situation of continuing high conflict. In high conflictual litigation settings, other problems may arise such as conflicts of loyalty or parental alienation.
A lawyer can help you make reasonable and informed decisions about all the legal consequences of your separation on your children’s daily lives and future. We are here to help you navigate through one of the most trying seasons a family can face.
The Civil Code of Quebec provides that « every decision concerning a child shall be taken in light of the child’s interests and the respect of his rights”. The notion of the best interest of the child must be the focus of any court decision on all matters affecting the child. The child’s best interest is an evolving concept that depends in large part on the discretion of the judge and his interpretation of the facts and circumstances of each case.
Certain guidelines exist to help the Court determine the best possible division of parental time in the child’s best interests (equally shared time, majority of the time with one parent, etc.). The court will assess the behavior of the child, the parents and any third parties if the behavior has an impact on the child’s best interest. The court will also assess the needs of the child. In order to do this, the Court will evaluate the testimony of the parents, the child’s level of maturity, third parties, expert witnesses, as well as reports from a court-appointed child attorney.
Other factors may include protecting the child’s stability, the child’s desires if the child’s age and maturity warrant it, the availability of the parents and their parenting abilities, any prevailing conflict and the level of communication between the parents.
The law in Quebec provides that the parents of a minor child exercise joint parental authority. This means that they decide together all important decisions related to the child’s health, education, religion, place of residence and well-being. Generally when parents separate, parental authority will continue to be shared.
If parents cannot agree on issues about their children, they can present their dispute before the courts to obtain a judgment.
The New Divorce Act has replaced “parental authority” by the words “decision-making”. The Courts can determine if both parents will share decision-making or if only one parent will make all important decisions.
If the facts of the case warrant it, a parent can ask the court to grant him or her sole decision-making. A parent can also request permission to exercise alone a specific attribute of decision-making, for instance deciding alone about the child’s health, religion, or travelling.
When the court has granted equally shared parental decision-making, parents have an obligation to consult with each other and make all important decisions related to the child’s well-being together. This obligation goes beyond the simply duty to inform. The other parent should be consulted in order to reach an agreement on every important decision that has to be made. Effective parenting after separation is an art that can sometimes require the help of professionals such as mediators, therapists or parental coaches.
For all decisions involving their child, if parents cannot reach an amicable settlement, they can submit their dispute to the court. The court will then make a decision based on the best interests of the child. This could be the case, for example, when parents do not agree on a trip to be made, a school trip, school attendance or health care to be provided to the child. The court could then intervene and make any decision it deems necessary to protect the best interests of the child.
Consult with a Montreal family lawyer today to be better equipped and to
make informed decisions in the best interest of your children.