In Quebec, child custody is decided first by agreement between the parents and, failing that, by the court, which rules on a single criterion: the best interests of the child. There is no arrangement imposed in advance. Depending on the situation, custody may be shared between both parents or granted to one of them, with the other parent then having access rights.
This guide explains the different forms of custody, how the court makes its decision and what you can do when circumstances change.
Child custody: what does it mean?
Custody refers to the time the child spends with each parent and the responsibility for the child’s day-to-day care. It is distinct from parental authority, which is the right and duty to make important decisions about the child (health, school, religion, etc.). As a rule, both parents keep parental authority after a separation, even when custody is granted to only one of them.
In a divorce case, the Divorce Act has used different terms since March 1, 2021: “parenting time” and “decision-making responsibility.” For parents who were not married, the rules of the Civil Code of Québec apply, using the notions of custody and access rights. In both cases, the underlying principle is the best interests of the child.
Shared or sole custody: what are the options?
Shared custody
In shared custody, the child lives a significant part of the time with each parent, for example on alternating weeks. For the purpose of calculating child support under the Quebec model, custody is considered shared when each parent has at least 40% of custody time.
Shared custody generally works best when:
- both parents have the ability and availability to care for the child;
- their homes are close enough not to disrupt school and activities;
- they are able to communicate and cooperate on matters concerning the child;
- the schedule suits the child’s age and needs.
Sole custody with access rights
In sole custody, the child lives mainly with one parent. The other parent has access rights, for example every other weekend, one evening a week and part of the holidays. These rights can be more or less extensive depending on the situation.
In exceptional situations, particularly when the child’s safety is at stake, the court may set conditions on access, for example by requiring it to be supervised.
How does the court decide on child custody?
The child’s best interests come first
The Civil Code of Québec provides that decisions concerning a child must be made in the child’s interest and with respect for the child’s rights. The court considers, among other things, the child’s moral, intellectual, emotional and physical needs, age, health, personality and family environment.
The Divorce Act takes the same approach and specifies that the court gives primary consideration to the child’s physical, emotional and psychological safety, security and well-being. The factors it lists include:
- the child’s needs, including the need for stability, given the child’s age and stage of development;
- the nature and strength of the child’s relationship with each parent, siblings, grandparents and other important people in the child’s life;
- each parent’s willingness to support the child’s relationship with the other parent;
- the history of care for the child;
- the child’s views and preferences, given the child’s age and maturity;
- the parents’ ability to communicate and cooperate;
- any family violence and its impact.
When allocating parenting time, the court applies the principle that a child should have as much time with each parent as is consistent with the child’s best interests. This is not a presumption of shared custody: each case is assessed on its own facts.
In practice, these criteria translate into very concrete situations. Parents who live close to each other allow the child to keep the same school and the same friends, which favours shared custody. A parent who works nights, however caring, may be less available day to day. And when every exchange of the child turns into a confrontation, the court will be reluctant to increase the number of transitions between the two homes.
Can the child choose which parent to live with?
No, the child does not decide. But when the child’s age and ability to understand allow it, the child must be given the opportunity to be heard, and their opinion carries more weight as they grow older. In some cases, the court may also order a psychosocial assessment or appoint a lawyer to represent the child.
How can parents agree on custody?
Most parents reach an agreement without a trial. Several tools are available:
- family mediation: parents with dependent children in common may receive up to 5 hours of free mediation with an accredited mediator taking part in the Ministère de la Justice program;
- a parenting plan: a document setting out the schedule, holidays, special occasions, travel, communication between parents and how decisions will be made;
- negotiation between lawyers, leading to an agreement submitted to the court for approval.
If the disagreement persists when the case is to be heard by a judge, parents must first have attended the free information session on parenting after separation, with an exemption for a person who is a victim of domestic violence. To learn more about how the process unfolds, read our article on the steps of a divorce in Quebec.
Can custody be changed after a judgment?
Yes. A custody agreement or judgment is never set in stone, because a child’s needs evolve. To obtain a change from the court, you generally need to show a significant change in circumstances since the last decision, such as a move, a new work schedule, difficulties experienced by the child or a persistent lack of cooperation.
A move deserves particular attention. In a case governed by the Divorce Act, a person planning a relocation must give the other parent written notice at least 60 days in advance, in the form set out by regulation, unless the court decides otherwise, particularly where there is a risk of family violence.
Custody also has a direct effect on the amount of child support: see our article on how child support is calculated in Quebec.
Frequently asked questions
Is shared custody automatic in Quebec?
No. No arrangement is automatic. Shared custody is often ordered when the conditions are met, but the court always decides based on the child’s best interests.
Does the parent without custody keep parental authority?
As a general rule, yes. Both parents continue to exercise parental authority together and must consult each other on important decisions, even if the child lives mainly with one of them.
At what age can a child give their opinion?
The law does not set a specific age. The court considers the child’s age and maturity when deciding how to hear the child and how much weight to give their opinion.
Are the rules the same for unmarried parents?
In substance, yes: the child’s best interests always guide the decision, whether the parents were married, in a civil union or common-law partners. Only the applicable law and the terminology change.
Support to protect your children’s interests
Custody issues touch on what matters most to you. A lawyer can help you propose a realistic parenting plan, negotiate an agreement or present your position to the court. Our lawyers in Montreal and the West Island, at our Pointe-Claire office, can guide you at every step. Learn more about our support in child custody in Montreal and in family law.
To talk about it, call Liverman Arrais at (438) 861-9500 or write to us using our contact form.
This article provides general legal information and does not constitute legal advice. Every family situation is different: consult a lawyer for advice tailored to yours.