subject: Ontario Family Law Tips - Separating From Your Spouse - The Top 12 Things You Need To Know When Separating From Your Spouse – Part 3 & 4 [print this page] Ontario Family Law Tips - Separating From Your Spouse - The Top 12 Things You Need To Know When Separating From Your Spouse Part 3 & 4
If you have recently separated from your spouse you may be thinking "how can I secure full custody of the kids?" There is no such thing as "full custody". What you likely mean is "sole custody". Sole custody generally means that the children will live primarily with you and that you will make all major decisions with respect to your children, including important decisions affecting their education, healthcare, religion, and other matters concerning your children's well-being.
To obtain an order for sole custody you must prove to the court that you were always the children's primary caregiver, that your husband had little or no involvement in the raising and care of your children, and that you and your husband are not capable, due to animosity, domestic abuse, etc., to make important decisions with respect to the children together.
Some have assumed that the mother will automatically get custody of the children. There is no presumption that the mother will be granted sole custody of the children. Who gets custody and what type of custody is ordered depends on who was the children's primary caregiver during your marriage, where the children have been living since you separated, your involvement in the children's lives and upbringing and how well you and your wife get along.
If you were heavily involved in your children's lives and you and your wife are separating on reasonably good terms, a Judge might award you joint custody and/or shared custody.
Joint custody means that both you and your wife will have equal decision-making authority with respect to all major decisions affecting your children. It does not matter whether your children live most of the time with your wife as your decision making authority is not dependent on how often the children reside with you.
Shared custody means that the children live with you at least 40% of the time over a course of a full calendar year. An example of shared custody would be the children living with you and your wife on a week-on-week-off basis and the children living with each of you for an equal amount of time during their holidays from school.
In recent years, Judges have been making efforts to avoid using the terminology of "custody" and "access." Instead, Judges are using words such as "primary residence," "secondary residence," and "decision-making authority."
For a more detailed discussion about the different types of custody and residence arrangements we encourage you to read "Separating from Your Spouse 101" or visit www.myontariodivorce.com.
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