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Who will my child live with?

You and your partner have to decide who your child lives with after you separate or divorce. This is called deciding your child's residence.

Deciding your child’s residence is different from custody. Custody means having the legal right to make important decisions about how to care for and raise your child. Custody is not about who your child lives with.

For example, even if you have custody and are the only one who can make decisions about your child, your child might live equal amounts of time with you and your partner. Or, your child might live mainly with you, but you and your partner have joint custody and share decision-making.

Wherever a child lives most of the time is called their primary residence. If a parent has sole custody, that parent's home is usually the child's primary residence. And the other parent usually has access.

Shared residence is when a child lives mostly equal amounts of time with each parent. One home may still be considered the primary residence with the other being the secondary residence.

If you and your partner agree on where your child lives, you can put what you agree on in an agreement.

If you can't agree, you can ask a family law professional like a mediator to help you work out an agreement. Or, you can go to court and ask a judge to decide.

The judge uses a legal test called the best interests of the child to decide where your child lives. Judges usually assume it is better for a child to have a relationship with both parents after they separate or divorce.

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1. Think about where you want your child to live

Think about where you want your child to live each day during the week and during holiday times, and what will work best for your family. This includes who your child spends time with during their school breaks, long weekends, and religious holidays.

A parenting plan checklist can help you with the things you may have to think about. Not everything on the checklist may apply to your situation.

Some of the things you have to decide on are:

  • how holidays and special occasions like birthdays are shared
  • how to discuss things to avoid conflicts
  • how often your child communicates with each of you, whether by telephone, email, skype, or text
  • who is responsible for picking up and dropping off your child between each of your homes
  • the place your child is picked up or dropped off, such as each of your homes, your child's school or daycare, a relative's home, or a public place
  • how changes to the access schedule are made
  • how to deal with changes in the future

These decisions depend on many factors including:

  • how old your child is
  • where your child goes to school or daycare
  • what your physical living space is like
  • how close you and your partner live to each other
  • your work hours
  • who can care for your child when you are at work
  • whether anyone else lives with you
  • whether your child has any special needs

Also think about how important it is for your child to have a meaningful relationship with each of you. Even if you're angry with your partner after separation, it's important to keep your child out of the conflict. Focus on what is best for your child and what they need from you.

If your child is older and emotionally mature, you and your partner can ask them what they want. Sometimes children do not want to be part of these decisions. But if they do and you think they are able to give their views and wishes freely, then you can discuss their choices with them.

As children get older, they often want to spend more time with their friends. It makes things easier for your child if you can be flexible and work with their plans.

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2. Talk to your partner

You and your partner can try to agree on living arrangements for your child without going to court. You can talk to your partner on your own, with the help of someone you both trust, or with the help of a lawyer or mediator.

If a court has to make decisions about your child's living arrangements, they use a legal test called the best interests of the child. Judges usually assume it is better for a child to have a relationship with both parents after they separate or divorce.

A parenting plan checklist can help you with the things you may have to think about. Not everything on the checklist may apply to your situation.

If you agree on issues related to your children, you can make a parenting plan. A parenting plan can be an informal arrangement between the two of you, or it can be part of your separation agreement.

Your parenting plan or separation agreement has to follow certain rules to make it binding and enforceable under the law. This means your agreement is made in a way that allows the court to order you or your partner to do what the agreement says, if either of you stop following it.

Legal Aid Ontario (LAO) has a service to help people with separation agreements. If your income is low enough, LAO covers the cost of up to 10 hours with a family lawyer to help you negotiate and draft a separation agreement.

Talking to your partner may not be an option where there is a history of partner abuse.

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3. Get help from a family law professional

If you and your partner cannot agree on living arrangements for your child, you can try getting help from a family law professional. These are neutral people who are trained to work with both of you to help you reach an agreement or make a decision for you.

Family law professionals can work in:

  • mediation
  • arbitration
  • mediation-arbitration
  • collaborative family law

All of these processes are sometimes called alternative dispute resolution (ADR). They help solve your issues without going to court. Deciding which process is best for you depends on the facts of your situation and what you want. For example, a mediator doesn't make decisions for you, but an arbitrator does.

Some of the reasons to use ADR instead of going to court are:

  • You have more control over what happens to your case.
  • It can be faster and cheaper.
  • It can be less stressful.
  • It takes place in a private setting.

But, there are some situations where it may be better not to use ADR, such as:

  • There is a history of family violence, mental illness, or drug abuse.
  • You can't talk to your partner.
  • You can't work cooperatively with your partner.

Each family court location in Ontario offers subsidized mediation services. You can get up to 8 hours of mediation for a fee that is based on each person's income. You can use this service whether or not you're in court. If you're already in court, you can get up to 2 hours of mediation at the court free of charge.

In some areas, Legal Aid Ontario has a mediation service that is free if you or your partner's income is low enough. These mediators help with issues of custody, access, parenting plans, travel and vacation plans, parent communication, and child support.

You can also find mediators who offer their services at lower rates through JusticeNet. JusticeNet is a not-for-profit that helps people in Ontario whose income is too high to get legal aid and too low to afford standard legal fees.

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4. Go to court

If you and your partner still cannot agree on living arrangements for your child even with the help of a family law professional, or if this is not the right option for you, one of you will have to start a family law court case.

Going to court can be a complicated process and it can take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues. This family law court process flowchart explains each step in a family law court case.

A judge looks at the facts of your situation and the best interests of the child test to make decisions about custody, access, and parenting. Judges usually assume it’s better for a child to have a relationship with both parents after they separate or divorce.

Some of the things a judge looks at are:

  • the relationship between each parent and the child
  • the emotional ties between each parent and the child
  • how long the child has lived in a stable environment
  • each parent's plan for the child's care and upbringing
  • each parent's ability to care for the child
  • in some cases, the child's views and wishes
  • if there has been abuse against any family member or any child

The judge also wants to know:

  • how old your child is
  • where your child goes to school or daycare
  • what your physical living space is like
  • how close you and your partner live to each other
  • your work hours
  • who can care for your child when you are at work
  • whether anyone else lives with you
  • whether your child has any special needs

You can talk to a lawyer who can help you understand your rights and responsibilities toward your children, and help you through the process.

If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

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Reviewed: 
September, 2015

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