In cases of separation, divorce or a dissolution of the civil union of the parents, a child is considered as being part of the family of the parent who was entrusted with CUSTODY by the court (ruling on provisional measures or ruling for separation or divorce) or, if no court ruling was made, by virtue of a written agreement between the two parents.
The Framework Policy establishes that AT LEAST 40% of the annual custody time is required for a child to be considered in the custody of the father, mother or another adult.
SHARED CUSTODY: A FACTUAL SITUATION
The child’s custody being a FACTUAL SITUATION, it is not necessary to have a ruling in order to consider that the situation is one of shared custody. However, it is necessary to have a statement on behalf of the parents confirming the agreement and terms related to the custody. This situation must generally be ratified by the court.
When both parents are clients, a written declaration is accepted in order to certify an agreement that DIFFERS FROM A RULING.
The person must provide the documents establishing that the custody is genuinely shared while specifying the application terms (number of days or months). It is necessary not to confuse custody with visitation rights authorizing a parent to see a child or go on an outing with him/her. The RULING OR ORDER of a court or a written agreement between the parents must mention the shared custody so that it can be considered as such.
However, when in the written agreement or ruling the words “shared custody” or “custody” are not mentioned, but the measures regarding the presence of the children among each of the parents and their application demonstrate that each of them want to remain in contact with the children as much as possible thereby exercising their parental prerogative, it is necessary to conclude that it is a situation of shared custody.
SHARED CUSTODY AND ONLY 1 PARENT IS A CLIENT
When a ruling or agreement grants the custody of the child to both parents and only one parent is a client, the child is added to the file of the parent who is a client when the annual custody rate is at least 40%. All of the adjustments for children are thus granted to him/her IN FULL (refer to chapter 11).
SHARED CUSTODY AND BOTH PARENTS ARE CLIENTS
When both parents are clients and each of them has custody for AT LEAST 40% of the time, the child is included in both files.
All of the adjustments for children are paid IN FULL in the files of each parent (refer to chapter 11).
ANNUAL PERCENTAGE OF CUSTODY TIME
The custody time is established by the court. In the event that an agreement is reached between the parents, it must be accepted until it is ratified by the court.
For the purposes of calculating the number of custody days per year, the agreement or ruling must specify the terms of application for the shared custody. It is not necessary to verify if the term “shared custody” is included since it is the custody percentage that indicates the shared custody.
The number of custody days must be at least 146 days per year in order to equate to a percentage of 40.
The custody time is calculated on an ANNUAL basis, before being converted to a monthly basis. The monthly variations are not taken into consideration.
Example:
A ruling grants the custody of the child to both parents and the father will have custody in accordance with the following terms:
- Every weekend;
- One week during the Holiday Season;
- One week during the winter school break;
- Eight weeks during the summer.
The calculation is performed as follows:
- 52 weekends X 2 days = 104 days;
- One week at Christmas = 5 days;
- 8 weeks in the summer = 40 days;
- One week in the winter = 5 days;
- Total custody days = 154 days.
N.B.: The calculations for the Christmas week, the winter break week and the eight summer weeks do not take the weekends into consideration since they have already been calculated.
154/365 – the custody time is thus 42.19% and the child will therefore be considered as being in the father’s custody.
MODIFICATION OF THE CUSTODY TIME
When there is a SIGNIFICANT modification to the custody time, it is necessary to recalculate in order to bring the file up-to-date. However, the variations that are already anticipated as part of the ruling must not be considered since they have already been taken into account (e.g. the client’s file, for which the ruling anticipates that he will have his child for one month during the summer, must not be modified when his child is with him during the summer since it is the annual custody time that is taken into consideration).
When the custody time is TEMPORARILY changed in order to take into consideration an exceptional situation (e.g. illness of a parent), it is possible to utilize the monthly custody time instead of the annual custody time. However, it is necessary that the temporary nature of this situation not allow for determining the annual custody time.
Example:
A father has the custody of his child at least 40% of the time. The mother requires an operation and asks the father to assume custody of the child 50% of the time during her recovery period. Given that it is impossible to determine the duration of this change, it is necessary to refer to the monthly custody time instead of the annual custody time. If the situation were to endure, it would be necessary to request a modification to the ruling.
Table of equivalent percentages for number of days per week child spends in family:
|
Days(s) /week
|
Percentage%
|
|
1 or 1/7 |
14% |
|
2 or 2/7 |
29% |
|
3 or 3/7 |
43% |
|
4 or 4/7 |
57% |
|
5 or 5/7 |
71% |
|
6 or 6/7 |
86% |
|
7 or 7/7 |
100% |
Table of equivalent percentages for number of days per year child spends in family:
|
Days(s) / year
|
Percentage%
|
|
219/365 |
60% |
|
146/365 |
40% |
|
73/365 |
20% |
|
35/365 |
10% |
Shared custody with only one parent eligible for the 66/72 benefit
When a ruling or agreement grants the custody of the child to both parents and only one parent is eligible for the 66/72 benefit, the child is added to the file of the parent eligible for the 66/72 benefit when the annual custody rate is at least 40%. Depending on the situation, adjustments for a minor child or a child of full age are granted to him or her in full.
Note: A child who does not reside in the community is not considered a dependent of the person eligible for the 66/72 benefit, except when absent for the following reasons:
- To pursue full-time education (the child continues to be dependent during the school year);
- To receive care required for his or her physical and mental state on the written recommendation of a physician and for the period specified by the physician;
- When he or she accompanies the person who provides the ongoing care required for his or her physical or mental state, for a maximum of six months;
- When he or she is retained outside Québec for a period no longer than six months for a case of force majeure.