Me Josée Dufour
A member of the Barreau du Québec since 2012, Josée Dufour practises at Verreau Dufresne Avocats, where she devotes herself to family and youth law. With more than a decade of courtroom experience, she supports her clients in separation, custody, support and adoption matters with rigour, empathy and transparency.
View profileBook an appointmentWhen parents separate, they must decide on child custody. In law, parenting time must be allocated in the child’s interest, which always takes priority over the parents’ interests. Whether it is a divorce or the separation of a couple that is or is not covered by the new parental union regime, all children have the same rights and their custody must be decided based on their best interests. Our family lawyers explain the types of custody available to you in detail to help you organize your family.
1. Sole custody of children
The term “ sole custody ” means that one parent has custody of their child full time, that is, between 220 and 365 days a year. The number of days varies depending on the agreements reached by the parents or the conclusions of a court judgment.
On the other days, the child will spend time with the non-custodial parent. In law, the concept of “ access rights ” refers to contact between the non-custodial parent and their child.
It is useful to distinguish access rights from extended access rights, since the number of days the non-custodial parent has the child will affect the calculation of child support. On this topic, we invite you to read our article on child support.
1.1. Sole custody with access rights (0 to 72 days a year)
The number of access days for a non-custodial parent varies depending on the agreements reached by the parents or the conclusions of a court judgment. When the non-custodial parent has contact with the child between 0 and 72 days a year, the custodial parent is said to have “ sole custody with access rights for the other parent ”.
Example : Mathilde and Paul separate. They are the parents of Charlotte, aged four. They decide that Charlotte will live full time with Mathilde and visit her father every other weekend. Charlotte will also spend one full week with each parent during the summer and during the holiday season.
In this case, Paul has access rights to Charlotte for 62 days a year, and Mathilde has sole custody.
1.2 Sole custody with extended access rights (73 to 145 days a year)
When the non-custodial parent has contact with their child between 73 and 145 days a year, this is called sole custody with extended access rights.
Example : Rose and Clément are the parents of Léa, aged five. Clément has custody of Léa, while Rose sees her daughter as follows :
– Every other weekend during the school year;
– Every other week during the summer;
– One week during the holiday season;
– Seven days during spring break;
– Four statutory holidays a year.
Léa therefore visits her mother about 90 days a year. Rose has extended access rights to Léa, while Clément has sole custody.
1.3 Sole custody with supervised access rights
The court can require that the non-custodial parent’s access rights be “ supervised ”. In that case, the non-custodial parent cannot exercise their access rights alone with their child. A neutral person must be present at all times during visits.
The court may issue such an order because of certain factors or issues related to the non-custodial parent.
For example, supervised access may be ordered when the non-custodial parent :
- Has alcohol use problems;
- Has a mental health issue;
- Has not seen the child for some time, or has their parenting capacity called into question by the other parent. In that case, supervised access may be ordered for a set number of weeks. Once the non-custodial parent has exercised access, the judge can reassess whether supervision should continue.
A parent who claims that the other parent’s access requires supervision must apply to the court through a proceeding called an Application for supervised access rights. This application can also be presented as part of a safeguard order. On this topic, we invite you to read our article on safeguard orders in family law.
The test the judge applies to justify such an order is the child’s interest. When the child’s interest calls for supervised access, the judge then decides on the frequency and length of contact, who will supervise, where visits will take place and any other necessary arrangements.
Supervised access is structured in this way to allow positive contact between the parent and their child. The length of the order depends on the issue involving the non-custodial parent. Supervision can be more or less temporary, depending on the circumstances.
The child’s interest is a legal concept whose analysis involves a complex process. Our family lawyers are well versed in the most recent case law on this subject and can help you assess whether the child’s interest requires supervised access. Do not hesitate to contact them.
1.3.1 Who can supervise access?
Each parent can suggest people they trust from their circle to supervise access. The judge can take these suggestions into account or appoint any other person if the child’s interest requires it.
The access supervisor must undertake in writing to comply with certain conditions, which are listed in this document (in French).
The judge can also order that access be supervised by a worker from a Maison de la famille .
1.3.2 Where does supervised access take place?
The judge orders that supervised access take place in a neutral location that is safe for the child.
The location can be the home of the parent concerned or the supervisor’s home. When access is supervised by a worker from a Maison de la famille, the visit takes place on the organization’s premises. The worker observes the contact between the non-custodial parent and their child to make sure the visit goes well. The custodial parent is not present during the visit.
2. Shared custody of children
Sometimes, the child’s interest favours shared custody. The parents can then decide to share custody days equally (50-50 custody), or in an unequal proportion ranging from 146 to 219 days (60-40 custody).
2.1 50-50 shared custody
50-50 shared custody means that each parent has 182.5 days a year with their child. There are several shared custody schedules, which vary depending on the child’s interest. Here are a few examples.
“ 7 days / 7 days ” shared custody schedule
| Monday | Tuesday | Wednesday | Thursday | Friday | Saturday | Sunday | |
| Week 1 | Father | Father | Father | Father | Father | Father | Father |
| Week 2 | Mother | Mother | Mother | Mother | Mother | Mother | Mother |
In this example, each parent has 7 consecutive days with their child, on an alternating basis. The start of the week can vary depending on what works best for the family.
“ 2 days / 2 days / 3 days ” shared custody schedule
| Monday | Tuesday | Wednesday | Thursday | Friday | Saturday | Sunday | |
| Week 1 | Father | Father | Mother | Mother | Father | Father | Father |
| Week 2 | Mother | Mother | Father | Father | Mother | Mother | Mother |
This schedule is often proposed when the child is very young, so that they see their parents for short periods but as often as possible.
“ 2 days / 2 days / 5 days / 5 days ” shared custody schedule (also called the “ 5-2-2-5 schedule ”)
| Monday | Tuesday | Wednesday | Thursday | Friday | Saturday | Sunday | |
| Week 1 | Father | Father | Mother | Mother | Father | Father | Father |
| Week 2 | Father | Father | Mother | Mother | Mother | Mother | Mother |
This schedule offers a compromise between the first and second schedules. Each parent sees the child every other weekend, and weekdays are shared. In this schedule, weekends are three days long and include Friday.
Note that you can propose other 50-50 custody schedules than those described above.
2.2 60-40 shared custody
Shared custody does not always mean an equal split of the days in the year.
When each parent has custody between 146 and 219 days a year, this is also shared custody within the meaning of the law. How this type of custody is set up can vary depending on your agreements, the child’s interest or a court judgment.
3. Can your child choose which parent they want to live with?
We invite you to read our article Child custody: the age at which a child can decide which parent to live with to find the answer to this question.
4. Grandparents’ access rights to their grandchildren
If one of the parents refuses to let their child have contact with the grandparents, the grandparents have a remedy. In Quebec, grandparents can apply for grandparent access rights to restore contact with their grandchildren, even against a parent’s wishes. Our family lawyers can advise and represent you in these circumstances.
Contact our family lawyers
Parents can agree on how to share custody time. If they disagree, the court will have to step in, and a judge will set the custody arrangements based on your child’s best interests.
It is important to act early to plan for an out-of-court settlement or a possible court hearing. Do not hesitate to contact our family lawyers, who can help you with the following:
- Analyze your rights and give you a straight answer
- Develop a strategy to apply for custody of your children
- Change the terms of an existing custody arrangement
- Apply for supervised access rights, if needed
- Calculate the child support related to custody of the children
- Negotiate an out-of-court settlement, if the situation allows
- Represent you in court, if no agreement is reached, to argue for the type of custody and arrangements that best serve your children’s interests.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
