JustFacts

Child Custody and Access

PDF Version

November 2017

Research and Statistics Division

This fact sheet is mostly based on data collected from the Survey of Family Courts (SFC)Footnote 1, as well as publicly available data from Statistics Canada, including the General Social Survey (GSS) cycle 25 (2011)Footnote 2 and the Civil Court Survey between 2005/2006 and 2010/2011.Footnote 3

Children in cases of parental separation or divorce

Between 1991 and 2011, approximately 5 million Canadians separated or divorced. Of these, 38% had a child together at the time of their separation or divorce.

Written arrangements on children’s primary residence and access

Going to court is often considered a last resort for resolving custody and access issues. Footnote 4 In most cases, parents come to an agreement on arrangements for their children. According to the GSS (2011), parents who have a child together at the time of their separation or divorce often have written agreements setting out children’s primary residence (59%) and time spent with children (45%).

Custody and access orders Footnote 5

In some cases, a judge makes an order for custody and access arrangements. Based on all the data found in the SFC, 50% of the orders were made on consent and 12% were decided by judges in contested cases. The remaining 38% were made on an uncontested basis, which means that one parent made the application, and the other parent neither contested nor consented.

Legal representation

According to SFC data, mothers had legal representation in 68% of orders (n = 18,535); fathers had legal representation in 59% of orders (n = 15,828).Footnote 6

Custody ordersFootnote 7

The data below represent cases where physical or legal custody is clearly stated in the order. Legal custody refers to decision-making responsibility for a child. Physical custody refers to the care of the child, often including their primary residence.

Custody in Court Orders, Survey of Family Courts described below
Text version – Custody in Court Orders, Survey of Family Courts

A stacked bar graph illustrates the different types of custody.

The Y axis is colour coded, showing the percentage of options described as: no arrangement, other, split, shared, primarily father, or primarily mother.

The X axis lists four columns: the first column shows ‘physical custody prior to 2006 (n=7,244)’, the second column shows ‘physical custody 2012-2015 (n=2,986)’, the third column shows ‘legal custody prior to 2006 (n=7,253)’, and the fourth column shows ‘legal custody 2012-2015 (n=3,562)’.

In the first column (physical custody prior to 2006 (n=7,244)), 68.7% of the column is ‘primarily mother’, 9.7% is ‘primarily father’, 10.2% is ‘shared’, 5.4% is ‘split’, 0.8% is ‘other’, and 5.2% is ‘no arrangement’.

In the second column (physical custody 2012-2015 (n=2,986)), 51.8% of the column is ‘primarily mother’, 8.9% is ‘primarily father’, 26.5% is ‘shared’, 6.5% is ‘split’, 0.4% is ‘other’, and 6.2% is ‘no arrangement’.

In the third column (‘legal custody prior to 2006 (n=7,253)), 28% of the column is ‘primarily mother’, 3% is ‘primarily father’, 49.9% is ‘shared’, 1.6% is ‘split’, 0.7% is ‘other’, and 16.9% is ‘no arrangement’.

In the fourth column (legal custody 2012-2015 (n=3,562)), 18.4% of the column is ‘primarily mother’, 2.4% is ‘primarily father’, 65.4% is ‘shared’, 1.5% is ‘split’, 0.4% is ‘other’, and 12% is ‘no arrangement’.

Source: Survey of Family Courts; internal analysis.

Only includes orders where arrangements were made for children, and custody was known.

Physical custody by order type over time

There has been a consistent reduction in the proportion of consent orders with children living primarily with their mothers (65% prior to 2006 to 55% in 2014-2015) and an increase in the proportion of shared custodyFootnote 8 cases (12% prior to 2006 to 28% in 2014-2015). These trends are also present in contested orders. There is a slight reduction in the proportion of contested orders where children live primarily with their mothers (62% prior to 2006 to 59% in 2014-2015) and an increase in the proportion of cases where courts ordered shared custody cases (8% prior to 2006 to 23% in 2014-2015).

Physical custody – consent orders
Custody Prior to 2006Footnote 9 (N=4,132) 2006-2007 (N=3,641) 2008-2009 (N=1,550) 2010-2011 (N=1,821) 2012-2013 (N=1,621) 2014-2015 (N=411) All Cases (N=13,716)

Mother

65%

64%

58%

55%

53%

55%

61%

Father

10%

9%

9%

10%

8%

7%

9%

Shared

12%

16%

17%

21%

29%

28%

18%

SplitFootnote 10

6%

5%

4%

5%

6%

7%

6%

No Arrgmts.

6%

5%

10%

7%

4%

3%

6%

Other

1%

1%

2%

1%

0%

0%

1%

Physical custody – contested orders
Custody Prior to 2006Footnote 11 (N=735) 2006-2007 (N=321) 2008-2009 (N=220) 2010-2011 (N=404) 2012-2013 (N=333) 2014-2015 (N=150) All Cases (N=2,163)

Mother

62%

61%

55%

57%

57%

59%

59%

Father

10%

14%

9%

9%

8%

7%

10%

Shared

8%

7%

12%

14%

15%

23%

11%

Split

5%

6%

5%

5%

7%

7%

6%

No Arrgmts.

14%

11%

19%

15%

12%

3%

13%

Other

1%

1%

0%

0%

1%

1%

1%

According to the SFC data, in 2014-2015 sole custody was the result in 62% of consent cases, with shared custody being the result in 28%. In contested cases, these figures were 66% sole custody and 23% shared custody.Footnote 12 The GSS (2014) reports that oftentimes the child lived primarily with their mother (70%), with 15% living primarily with their father. The GSS also reported only 9% of children living equally in both parents’ homesFootnote 13. The GSS uses a narrower definition than that used by the SFC. Under the Child Support Guidelines regime, shared custody is considered to occur when the child lives at least 40% with each parent.Footnote 14 Footnote 15 In a recent Canadian studyFootnote 16 using the Child Support Guidelines definition, shared custody was found to be used in about one fifth of parenting orders.

Legal custodyFootnote 17 by order type over time

The patterns for legal custody are similar to those for physical custody. From 2006 to 2015, there has been an increase in joint legal custody and a decrease in sole legal custody to mothers. The proportion of consent orders where mothers had sole legal custody decreased from 18% prior to 2006 to 12% in 2014-2015. The proportion of consent orders for joint legal custody increased from 61% prior to 2006 to 66% in 2014-2015. Again, these patterns were also present in contested orders. The proportion of contested cases where courts ordered sole legal custody to mothers decreased from 20% prior to 2006 to 17% in 2014-2015. The proportion of contested cases where courts ordered joint legal custody increased from 35% prior to 2006 to 53% in 2014-2015. 

Legal custody – consent ordersFootnote 18
Custody Prior to 2006Footnote 19 (N=4,136) 2006-2007 (N=3,640) 2008-2009 (N=1,550) 2010-2011 (N=1,821) 2012-2013 (N=1,631) 2014-2015 (N=484) All Cases (N=13,262)

Mother

18%

18%

17%

14%

13%

12%

17%

Father

2%

2%

2%

3%

2%

1%

2%

Joint

61%

66%

65%

69%

77%

66%

66%

Split

1%

1%

1%

1%

2%

2%

1%

No Arrgmts.

18%

12%

13%

11%

7%

19%

13%

Other

1%

1%

2%

2%

0%

0%

1%

Legal custody – contested orders
Custody Prior to 2006Footnote 20 (N=737) 2006-2007 (N=321) 2008-2009 (N=220) 2010-2011 (N=404) 2012-2013 (N=342) 2014-2015 (N=191) All Cases (N=2,215)

Mother

20%

21%

21%

17%

18%

17%

19%

Father

2%

3%

2%

3%

3%

2%

3%

Joint

35%

44%

39%

51%

59%

53%

45%

Split

1%

2%

0%

1%

2%

1%

1%

No Arrgmts

41%

30%

36%

27%

17%

26%

31%

Other

1%

1%

2%

1%

1%

1%

1%

Access arrangements

In 93% of cases where only one parent had physical custody, the order set out access for the other parent. Courts ordered various types of access, as follows:

Types of Access %

Reasonable

67%

Schedule/Specified

18%

Supervised visits

3%

Information/No visiting

0%

No information/No visits

2%

At discretion of the child

5%

As agreed by parties

22%

Other details provided

16%

Source: SFC data, N=18,998 cases with sole physical custody; categories are not mutually exclusive.

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