Custody is about making major decisions about how to care for and raise your children. These decisions could include:
- Health care
- Religion or spirituality
Custody is not about where the child lives. For example you could have sole custody and are the only decision‑maker, but your child lives part of the time with your ex and part of the time with you.
People often get confused by custody and access. Access is when you have the right to visit—or be visited by—your children. It also means the right to get information on your child’s health, education and well‑being. For more information, please visit the access page.
Types of custody
- Sole custody
- One parent cares for and makes decisions about the children on their own. The other parent may or may not have access to the kids.
- Joint custody
- Both parents make decisions about the children together. It has nothing to do with how much time the children spend with each parent.
- Shared custody
- This type of custody has nothing to do with decision‑making but focuses on which parent the child lives with and when because this impacts how child support is paid.
- Split custody
- When one parent has custody of one or more children and the other parent has custody of the other children.
How is custody decided?
The judge will use the “best interest of the child” test. The judge will look at:
- the emotional ties between the child and the claimant
- the views and preferences of the child
- how long the child has lived in a stable home
- how able and willing each claimant can provide the child with guidance, education, and the necessities of life and special needs of the child
- any proposed plans for care and upbringing
- how permanent and stable the proposed family unit is
- whether that person can take on the roles and responsibilities of a parenting
- familial relationship between the child and each person who is party to the application
How can Legal Aid help?
Find out if you’re eligible for legal aid help.
If you qualify for legal aid help on your day at court
There are lawyers at the courthouse called duty counsel. They can help you with:
- drafting and preparing documents for urgent or without notice matters or where you are unable to complete court documents because of mental or physical health or literacy issues
- reviewing agreements from mediation
- first appearance at court
- first case conference for applications, responses and motions to change
There are Family Law Information Centres in most of the courthouses. A lawyer who can give you advice is known as family advice counsel. They can:
- give you general information about how to choose a lawyer and how best to use the help of a lawyer
- give you up to 20 minutes of advice and information about the court process and on family matters
If you qualify for a lawyer to represent you in court
We may cover the cost of a lawyer to help with your custody case if:
- you or your child fear for your safety from your ex
- the way your ex is behaving is hurting your relationship with your child
- you worry that your ex will kidnap your child
- you have recently separated and there is no custody or access agreement between you and your ex
If you are a grandparent seeking custody or access and you are financially eligible, we may cover the cost of a lawyer who will decide if your case has a good chance of succeeding.
If you don’t qualify for legal aid
JusticeNet is a not-for-profit service that provides an easy-to-use online directory of legal professionals who offer services to eligible clients at reduced rates. There is a $25 registration fee to access the directory.
For more information visit their website at justicenet.ca.
How do you start an application for child custody?
Step 1: Prepare your court application form
You have to make the application for custody in the jurisdiction where your child usually lives.
You will need to complete the following forms:
Step 2: Get your application issued
Take at least three copies of all of your documents to the court clerks.
If you are going to the Ontario Court of Justice, go to the family counter.
If you are going to the Superior Court of Justice, take a number and go to the registrar’s office.
You will get your file number and a notice to attend a Mandatory Information Program session for both you and the other party. The session gives you an overview of family law issues and the family court process.
You can find more information on our page about starting a family court case.
Step 3: Serve your application
You must get someone else to give a copy of all the documents that you have filed with the court as well as the Mandatory Information Program notice and give them to the other party. You cannot serve these documents. You must have someone who is at least 18 years old—this could be a friend or family member or a professional server—hand deliver a copy to your ex.
You will also have to file proof that you have given these documents to the other party. This is called an affidavit of service.
For more information, please visit serving family court documents.
Step 4: Complete proof of service
Proof of service is known as an affidavit of service. It’s a document that shows that all the documents were successfully given to the other party.
The affidavit will list the time and date the documents were served, and also how it was served and who did the serving.
An affidavit of service is important. If the other party says they haven’t been notified, this affidavit proves that they were.
Include any supporting documents. For example, if you mail a claim by registered mail, print off the delivery confirmation including the signature verifying the receipt from the Canada Post website. If you send it by courier, include the delivery confirmation with signature provided by the commercial courier company.
This form needs to be signed in front of a notary or a commissioner for taking affidavits. There is a fee of $21 for this service. If you need help finding a commissioner or notary to do this service, ask the court clerk for help.
Make sure you come to the commissioner with ID and the unsigned document.
Step 5: File your court documents
Take all of your original documents to the family court clerk and put them into your continuing record, which is a record kept at the courthouse with all of the documents that you have filed and want the court to look at.
You will have to update your table of contents, which is a list that includes every form and document that you have added to your court file.
If you’re unsure about anything, ask the clerk for help.
- CLEO: Separation and Divorce: Child Custody, Access and Parenting Plans
- Ministry of the Attorney General: Child Custody and Access
- Steps to Justice: Child custody, access and parenting