Although most people have heard of the term custody before, they might be surprised to learn that the term is not fully defined in legislation. The Divorce Act provides a limited definition as follows:

“custody” includes care, upbringing and any other incident of custody;

Some Canadian jurisdictions do not use the term custody, and prefer the term guardianship instead.

The Divorce Act applies the maximum contact principle under sections 16(10) and 17(9), and states that children should generally have as much contact with both parents as possible, although courts will always consider the best interests of the children and may restrict contact.

The Supreme Court of Canada provided some background on the shifting views regarding custody in Young v. Young,

34     As has been widely observed by those studying the nature and sources of changes in family institutions, popular notions of parenthood and parenting roles have undergone a profound evolution both in Canada and elsewhere in the world in recent years (see generally M. A. Fineman, The Illusion of Equality: The Rhetoric and Reality of Divorce Reform (1991); L. J. Weitzman, The Divorce Revolution (1985); J. Drakich, “In Whose Best Interests? The Politics of Joint Custody”, in B. Fox, ed., Family Bonds and Gender Divisions: Readings in the Sociology of the Family (1988); C. Smart and S. Sevenhuijsen, Child Custody and the Politics of Gender (1989), and S. B. Boyd, “Women, Men and Relationships with Children: Is Equality Possible?”, in K. Busby, L. Fainstein and H. Penner, eds., Equality Issues in Family Law: Considerations for Test Case Litigation (1990)). One of the central tenets of this new vision is that child care both is no longer and should no longer be exclusively or primarily the preserve of women. Society has largely moved away from the assumptions embodied in the tender years doctrine that women are inherently imbued with characteristics which render them better custodial parents (for a discussion, see D. L. Chambers, “Rethinking the Substantive Rules for Custody Disputes in Divorce” (1984), 83 Mich. L. Rev. 477). Moreover, both economic necessity and the movement toward social and economic equality for women have resulted in an increase in the number of women in the paid workforce. Many people have tended to assume that a natural result of this change would be the concurrent sharing of household and childcare responsibilities with spouses, companions and, of course, fathers. In addition, the increased emphasis on the participation of fathers in the raising of children and financial support after divorce gave rise to claims by fathers and fathers’ rights groups for legislative changes that would entitle them to the benefit of neutral presumptions in custody decisions.

Custody is not considered a right for the benefit of the parent, but rather a duty by the custodial parent to ensure, protect, and promote the best interests of the child. This includes overseeing aspects of day-to-day life and their long-term well-being, and major decisions around education, religion and health.

Professor Julien Payne states in Payne on Divorce,

In Canadian divorce proceedings, case law tends to support the conclusion that, in the absence of directions to the contrary, an order granting “sole custody” to one parent signifies that the custodial parent shall exercise all the powers of the legal guardian of the child. The non-custodial parent with access privileges is thus deprived of the rights and responsibilities that previously vested in that parent as a joint custodian of the child…

 The provisions of the Divorce Act, 1985, and particularly the definitions of “custody” and “accès” in section 2(1), may preclude Canadian courts from reverting to a narrow definition of custody. Pursuant to section 2(1), “‘custody’ includes care, upbringing and any other incident of custody” and “‘accès’ comporte le droit de visite.” The use of the word “includes” in the definition of “custody” implies that the term embraces a wider range of powers than those specifically designated in section 2(1). . . . Consequently, in the absence of an order for shared parenting or a court-ordered division of the incidents of custody, a non-custodial spouse with access privileges would remain a passive bystander who is excluded from the decision-making process in matters relating to the child’s welfare, growth and development. This remains true notwithstanding that section 16(10) of the Divorce Act, 1985 provides that the court shall promote “maximum contact” between the child and the non-custodial parent to the extent that this is consistent with the best interests of the child

Joint custody arrangements can vary tremendously between cases, and is largely subject to the willingness of the parties to make it work. Justice Zucker stated in Moreira v. Garcia Dominguez,

125     From a child’s perspective, joint custody has an inherent appeal. It allows each parent to be actively involved in the child’s life, and to have meaningful input with respect to important decisions. It may help ameliorate a child’s sense of loss, and provide ongoing emotional reassurance that both parents still care – and care equally. Where separated parents can make joint custody work, the child – and the entire family unit – are likely to benefit.

126     But joint custody will only work if the parents have the desire and the capacity to make it work. It is not a risk-free option. In the wrong family circumstances, a joint custodyorder can perpetuate hostilities, indecision, and power struggles. Children, particularly children already exposed to the upset of family breakdown, look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

 Therefore, the maximum contact principle under the Act does not necessarily guarantee that joint custody is appropriate. Justice Bielby indicated in Colwell v. Colwell (1992), 38 R.F.L. (3d) 345 (Alta. Q.B.) at p. 348:

 …where there is no history of effective joint decision making, post separation, the court must examine the evidence to decide if it reveals a couple with the maturity, self-control, ability, will and communication skills to make proper joint decisions about their children. If it does not, it would not be in the best interests of the children to order joint custody.

 To make such an order where these qualities do not exist would impede the ability of the parent with whom the children reside to care properly for them. It would result in the parent being obligated to deal with issues facing the children without the full power to do so, i.e. it would impose on that parent responsibility without the power to meet it. Such an order could give the non-residential parent the potential to manipulate, with resulting damage to the ability of the residential parent to provide a contented home for the children.