June 16, 2011 By: Marta Siemiarczuk
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One of the most common questions people ask when separating is “what happens with the kids?” It is something that is often the foremost concern to separating parents. This article will try to address some frequently asked questions about children in the context of separation.

What Does Custody Mean?

It is a common misconception that custody means physical custody of the children, i.e. with whom the child lives. “Legal Custody” actually refers to who has authority to make major decisions relating to the upbringing of the children on issues such as education, medical care, religious upbringing and major extra-curricular activities. Physical custody is better referred to as “residence”. In a joint custody arrangement, both parents have the authority to make the major decisions relating to the children, which means that they have to agree on those decisions. If parents cannot reach common ground and agree on parenting issues, joint custody is probably not the way to go. In a joint custody situation the child can still reside primarily with one parent although both have to make joint decisions. Conversely, in a sole custody situation, one parent is responsible for making the major decisions. It is entirely possible to have a situation where one parent has sole custody for purposes of decision-making yet the child resides equally with both parents.

Can I Move Out with the Kids?

Generally speaking, the answer is “no” unless the other parent agrees. If you and your partner are separating and have children together there is a presumption that each of you has the same custodial rights over the children as the other. This means that unless you have the other parent’s agreement (and the best practice is to get this in written form) to move with the children out of the home where they have been residing until the separation, you should not try to move away with them.  Other than creating what will likely become a heated custody dispute, a parent who unilaterally attempts to move out of the home with the children risks being accused of abducting the children, including possibly having the police attend at the new doorstep to bring the children back to the home where they were residing prior to the separation. In addition, that parent faces the risk of court action against him or her potentially resulting in an order returning the children to the prior residence and being placed into the primary care of the parent from whom the children were taken.

There are of course situations involving domestic abuse, be it physical or emotional. In certain such situations a parent may have good grounds to leave the home with the children without agreement but this needs to be handled carefully and it is best to seek the advice and assistance of a family law lawyer.

Who Pays the Kids’ Expenses After Separation?

This is a good question and the answer is, “it depends”. Child support is payable by one parent to the other pursuant to the Child Support Guidelines based on the income of the payor parent and the number of children who reside primarily with the recipient parent. In the normal course, child support is only payable once the parents physically separate and begin living in two separate residences. Many people are familiar with the Child Support Guidelines, but what happens when the parents are still living under the same roof? While the law is not settled on the issue, if both parents are contributing towards the joint household expenses, such as mortgage or rent, utilities and groceries, then both parents are in essence contributing towards the children’s living expenses. Specific expenses such as medical/dental bills, school activity fees extracurricular activities and even clothing should be shared in some proportion between the parents and typically in proportion to their respective incomes.

If however there is a situation where one parent is paying all of the household expenses and the children’s expenses as outlined above, there is certainly an argument to be made that the parent who did not contribute towards the living expenses and children’s expenses should have paid child support to the parent who did incur all of the post-separation costs, assuming the non-paying parent has income. In such situations, parents should speak with a family law lawyer to assess the situation. It is best however to attempt to come to a mutually acceptable agreement on sharing the costs of raising children while continuing to reside under the same roof post-separation as this will save on legal fees to sort out the finances later, and more importantly, will serve to avoid unnecessary disputes in what is already a less than ideal situation.

What Can I Say to my Children About the Separation?

While this article does not propose to provide parenting advice, in the eyes of the court, discussing separation with the children is certainly frowned upon even with teenaged children. This does not mean to say that you cannot tell your children you are separating, but when that conversation is had with the children, it should be done in a neutral manner. It is very easy for parents to become caught up in a custody and access dispute and to either discuss ongoing issues with the children, which in most cases gets back to the other parent leading to further acrimony, or to discuss matters at home with others or on the phone with others within ear shot of the children. Sometimes this is entirely unintentional but can be brought up by the other parent in an attempt to undermine the parenting abilities of the other.  The best rule to stick to is not to speak about separation issues directly with the children or to third parties within earshot of the children. Even what may seem as a fairly innocuous question such as “do you want to go to mommy’s house this weekend?” may be problematic if it is “mommy’s” weekend with the kids. The better approach is to simply tell the child that he or she is going to visit the other parent. The tendency of our judges is to view parenting issues as matters to be determined by the parents or by the court and children should be kept out of the fray as much as possible.

Available Resources

A family law lawyer can certainly be of assistance in dealing with parenting issues; however, there are other resources available such as parenting mediators, parenting coordinators, child psychologists and social workers who specialize in parenting issue post-separation. You and your lawyer should canvass the availability of those services and whether they are appropriate for your particular situation to help resolve parenting disputes.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law