Mediation…or how does custody of my child work in case of separation?

13-14 weeks pregnant, Health advice

To better understand the concept of filiation and assisted procreation, please read Applying the Filiation Concept to Assisted Procreation.

Mediation…or how does custody of my child work in case of separation? During a separation or divorce, the two parents have custody rights for their children as they both have parental authority. They have to continue to meet their needs, including monetary, based on their respective capacities. Separation or divorce does not change the rights and obligations of parents towards their children. 

Of course, in this type of situation, the parents have to mutually agree to share custody and the option of paying child support for the children. 

In Quebec, a couple that is married or in a civil union with children under 18 years of age should have recourse to mediation to agree on custody and the payment of child support where applicable. The judgement of divorce will contain the final agreements.

Common-law couples can voluntarily decide to go into mediation to establish custody and child support guidelines, but they are not legally bound to.

When the two parents live in Quebec, Quebec law outlines the rules for setting child support for children. The support is expected to correspond to the needs of the children and the resources of the parents. These rules determine the amount to be paid for each child. It takes into consideration the number of children and the net income of each parent.

Whatever your situation, the mediation process is preferred for taking decisions, as it can easily adapt to each case. The goal is to find common ground and make decisions that are satisfactory for each of the parties while always first considering the interests of the children.

Please note that only notaries certified in family mediation can offer this service! Please consult Justice Quebec for more information and to find certified family mediators in your region.

Expert Advice

There is never a good or bad time plan for the consequences of death or disabilities, but the arrival of a baby is even more of a reason to sign a will and a protection mandate in due form. 

Who will inherit my assets after my death? Who will have custody of my child if they become an orphan? How can I meet their future needs? These are questions that can be answered by preparing legal documents that meet your needs. 

If there are minor children present, systematically inserted into the will and the protection mandate will be the names of people you trust, who you want to have custody and parental authority of your children if they become orphans (guardians). However, if your will or protection mandate becomes applicable, the person/people you named could refuse this responsibility.  

Additionally, the choice belongs to the last of the two parents. After the first death or first disability, the second parent will continue to exercise 100% of parental control. If the second parent dies, only then will those named in the will become guardians for minor children. 

The guardianship of a minor raised many other questions, such as the guardian’s rights and obligations or the need to constitute a tutorship council.

Also, in the absence of these protection tools (will and protection mandate), the children may end up in the middle of a process to choose the guardian. This involves the courts and even Child Protection Services. Honestly, I think all parents would want to avoid a situation like this for your child when they just lost their two parents! 

You can find a ton of legal information on the Quebec Chamber of Notaries website. 

As a conclusion, I hope that I was able to answer many of your questions concerning your role as a new parent! I want to reiterate that the information found in this article is very general in nature and can be subject to changes due to your specific situations. Please consult with a notary to get the right information and legal opinion based on your own case! 

Talk soon,

The Baby Expert 


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