Custody (Parenting Time) & Parental Authority in Québec

In Québec, parents who are no longer together have equal rights regarding their child. They must figure out how to share in the rights and responsibilities of parenting. They can negotiate one-on-one, with lawyers or through an alternative dispute resolution method.

Many parents are able to agree on terms like when the child will live with each parent and who will pay child support. To make the terms binding, they can write and sign a parenting plan. For easier enforcement, they can turn the plan in to the court for a judge's approval, which makes it a court order.

When parents can't agree, they open a family law case with the court. A judge decides the details of their final judgment at trial, unless the parents reach a compromise first, which most do.

Parental authority (decision-making responsibility)

Parental authority (called decision-making responsibility in divorce and separation cases) refers to the rights and responsibilities parents have in regard to the care of their child. This includes the right to make major decisions on the child's behalf and the responsibility to provide shelter, food, clothing and other necessities for the child.

If only one parent has custody (explained below), they have the authority to make all child-related decisions. However, this doesn't prevent the other parent from going to court if they think a decision was bad for the child.

If both parents have parental authority, they can make day-to-day decisions on their own when the child is with them. They both have a right to weigh in on major decisions like:

• Where the child lives
• Where the child goes to school
• The child's religion
• Medical treatments the child receives

Parental authority ends when:

• The child turns 18.
• The child is emancipated by marriage or a court decision.
• The court takes away parental authority from a parent.

A parent may lose parental authority if they abandon the child or are cruel, violent or abusive toward them. They'll still be responsible for paying child support.

To get back parental authority, the parent must prove all of the following:

• Major changes have happened in their or the child's lives.
• Their problems are resolved.
• They can take on the responsibilities of a parent.
• Reinstating their authority won't harm the child.

If the child has been adopted, the parent cannot get their authority back.

Custody (parenting time)

For parents who aren't married to each other, the court refers to the right to house a child as custody. For divorcing and separating parents, it uses the term parenting time instead. We'll use both interchangeably here.

The type of custody or parenting time a parent has determines how much the child lives with them in a calendar year. Parents can agree on an arrangement or let the judge decide.

• Shared parenting time / shared custody: Each parent has the child for 40 to 60 percent of the year. This is the most common arrangement.
• Majority parenting time / sole custody: One parent has the child for more than 60 percent of the year. If the other parent has more than 20 percent but less than 40 percent of the time, that is considered prolonged visiting rights. If they have 20 percent or less of the time, that is considered visiting rights.
• Split parenting time / split custody: Each parent has at least one of their children for more than 80 percent of the year. This arrangement usually only applies if there are significant age gaps between the children.

For the judge to order shared parenting time, they must determine that both parents are able to:

• Give the child stability
• Take care of the child
• Communicate without arguing
• Live close to one another

The judge might order majority parenting time if a parent can't do one or more of the actions listed above.

Judges don't favor one custody model over the other. They assume both parents are fit for custody until shown otherwise, and they try to maintain the child's relationship with each parent while prioritizing the child's best interest.

Custody can be modified if there is an unexpected or significant change, such as a parent moving or completing a rehabilitation program, or if parents agree on a change.

Parents may have a parenting time schedule specifying when the child will be with each parent, or they may leave transitions flexible. It's best to have a specific schedule to avoid arguments and confusion.

Visiting rights (parenting time)

When one parent does not have custody, they usually have visiting rights (officially called parenting time if parents were married). All of the following count as visits:

• Visits at the parent's house
• Outings, whether short or overnight
• Vacations
• Telephone calls

You'll cover the times for visits in your parenting time schedule.

Parents with visiting rights can object in court to the custodial parent moving away if the move would affect visits, would significantly impact the child, or was unexpected when custody was awarded.

You should not interfere with visiting rights. If one parent doesn't allow the other to exercise visiting rights, the inhibited parent can ask the court to change custody. If a parent with visiting rights rarely shows up for visits, the custodial parent can ask the judge to increase child support payments or remove the visiting rights.

Starting a case

If you can't come to a resolution about custody, you can start a court case in the Superior Court of Québec.

You might have to meet certain requirements before applying. If you want a divorce, you must be separated for at least one year before applying. If your child does not have a legal father, you'll need to establish filiation before applying for custody.

After filing your application, you must attend an information session before the court will set a date to hear your application.

How the court decides custody

The most important factor in the judge's decision is the child's best interest. To understand this factor, the judge looks at many aspects of the family's situation.

In regards to parents, the court considers their:

• Ability to meet the child's needs
• Mental and physical health
• Time spent with the child
• Financial status
• Lifestyle and whether it will impact the child
• Willingness to encourage a relationship between the child and the other parent

In regards to the child, the court considers their:

• Age
• Needs
• Mental and physical health
• Relationship with each parent
• Relationships with their siblings
• Preference (more below)

The judge does not consider:

• Whether parents have new partners or have remarried
• Parents' sexual orientation
• Elements of the parents' relationship that don't affect the child (e.g., adultery)
• The cultural background of parents

It's important that you remain active in your child's life. Should you go to court, the judge will look into what arrangement will provide the child the most stability. They're unlikely to place the child with someone whom the child hasn't had much contact with.

In some cases, the judge will request the opinion of an expert. This commonly happens when there are allegations of parental alienation, abuse or other misdeeds by a parent.

Child's preference

Depending on their age, the child's preference could loom large in the judge's final decision. The preferences of children aged 8 to 11 are considered but aren't given as much weight as the opinions of children 12 and older.

There are a few ways a judge can learn what the child wants:

• By interviewing the child in private
• By assigning a children's lawyer (guardian ad litem)
• By ordering or allowing an expert to conduct an investigation
• By allowing the child to testify at trial

Although their wants are a factor, your child does not make the custody decision.

Length of proceedings

The more contentious your case, the longer it will take. If you settle, your case can finalize within days of when you reach agreement.

Divorce cases require more time since they have issues besides custody to address. On average, a divorce trial lasts three days. For a trial handling a single issue like custody, you might just need one day. The lead time before each type of trial also varies accordingly — anywhere from one to two years.

Potential costs

If you hire a lawyer, you'll have to pay a retainer (a lump sum based on how many hours of their time you expect to need). You'll pay more later if the lawyer puts in additional hours.

Fees vary depending on your location and the lawyer's experience. In Montréal, hourly fees can reach up to $1,000. In smaller areas, hourly fees tend to range from $200 to $600.

If you open a court case, you'll have to pay fees. The fee to apply for custody is around $160. The fee to apply for separation or divorce is around $350 ($108 if you file a joint application).

If you hire your own expert to provide psychosocial expertise for your case, it could add thousands to your costs.

Legal representation

You could represent yourself in court, but in many circumstances, it's best to have a lawyer. For example, an experienced lawyer will know how to handle complex divorce matters like family patrimony (i.e., marital property) and matrimonial regimes (which decide how property will be divided).

You can contact any of our lawyer sources listed below or find a lawyer online through JurisRéférence or the Barreau du Québec's directory of lawyers. Many offer free consultations.

Free or reduced-cost legal representation is available to some through the Legal Services Commission. Those who don't qualify for legal aid can try the Centres de Justice de Proximité for assistance.

Some lawyers offer limited-scope representation, meaning they look at certain aspects of your case and let you handle the rest. This is one way to save money.

Confidentiality

Family cases are closed, meaning only parents, the judge and other professionals working on the case are allowed in the courtroom during hearings. The court file resulting from the case is only accessible to the parties, lawyers and judges involved.

Mediation is also confidential, and parents cannot use any information they learn from mediation against each other in court.

Québec custody laws

For more information about child custody in Québec, see Canada's Divorce Act, the Civil Code of Québec and the Code of Civil Procedure.

Staying organized

Setting up parenting arrangements after a separation requires serious organization. You may need to create a parenting plan, draft multiple parenting time schedules, calculate expenses and beyond.

The Custody X Change app enables you to do all of that in one place.

With a parenting plan template, customizable parenting calendars, an expense tracker and more, Custody X Change makes sure you're prepared for whatever arises in your transition to two households.

Take advantage of our technology to stay on top of all the moving parts of your situation.

Our professional sources

For more help, consider reaching out to one of our sources. The people and offices listed below have helped us with the intricacies of decision-making responsibility and parenting time in Québec, and we hope they can help you, too.

Allen | Madelin
Dorin Holban
Montréal, QC

Champlain Lawyers
Jérémie John Martin
Montréal, QC

James Mass
Montréal, QC

Dr. Jean-Philippe Vaillancourt
Montréal, QC

Kalman Samuels
Daniel Romano
Westmount, QC

Louis Gosselin
Québec, QC

Pringle & Associés
Catherine Marcil
Laval, QC

Spiegel Sohmer
Charlotte Oger-Chambonnet
Montréal, QC

Teitelbaum Librati
Muriel Librati
Westmount, QC