If there are children of a marriage or relationship, the first critical issue to determine is where the children are going to live, and who is going to look after them. If the parties cannot agree on a living arrangement for the children, then the court will attempt to determine what arrangement is in the best interests of the child or children. If the parties are married, then this will involve an application by one parent to the Court of Queen's Bench for an interim order. It is called an interim order because it is intended to be for an interim period pending the working out of a more permanent arrangement. If the parties are not married, then they will apply to the Provincial Court Family Division for a parenting order.
In making a determination as to the best interests of the child, the court will consider the following factors:
Minimize disruption
Which arrangement will cause the least amount of disruption to the children? The court will want the children to remain in the matrimonial home if possible. The court will want to avoid changing schools as a result of the breakup. If one parent is a stay at home parent, then the court will likely be inclined to leave the children in the care of the stay at home parent.
Maximize exposure to both parents after separation
The courts believe that the children have the right to the benefit of the guidance and support of both parents,and will seek to maximize time with both parents. This does not mean that the court will always lean towards an equal parenting situation. It means that the court will seek to ensure that both parents get to spend meaningful time with the children after separation.
Safety of children
The courts are very concerned to ensure that the children are not subjected to any family violence.
Special needs
If a child has special needs or health concerns, this may impact the decision where to place the child.
If one party or the other is not satisfied with the initial interim custody/parenting arrangements, they may pursue the matter to a trial or a final determination. If the parties can afford it, the court may seek the assistance of an independent third party to provide them with a report as to what would be in the best interests of the children. This expert is often a psychologist and the report is referred to as a bi-lateral assessment. These assessments are seen more often at the Court of Queen's Bench rather than Provincial Court, because they are expensive. Married litigants usually are more established and better able to afford the cost of the assessment.
