My partner and I have two children but were never married. How are custody …

“My partner and I have two children but were never married. How are custody and child support decided when dealing with children of unwed parents?”

How custody and child support is decided when dealing with unwed parents is the same as it is for parents who are married. The test for a determination of custody, “what is in the best interests of the children,” is used in both situations and is applied identically. The court does not distinguish between married parents and unmarried parents. When parents are married, both the Divorce Act and the Children’s Law Reform Act apply. When parents are not married, only the Children’s Law Reform Act applies, but both pieces of legislation use the “best interests” test.

Custody fights between parents generally have an adverse effect on the children. If a couple is unable to agree on how best to parent their children after separation, thought should be given by the parents to retaining the services of a “parenting co-coordinator” to assist them in working out a parenting plan. If the parties cannot agree on a parenting plan, often the court will appoint the Children’s Lawyer, a government funded agency, to represent the children’s interests in the dispute between their parents. The children can, through the Children’s Lawyer, voice which parenting plan would work best for them, but the children’s wishes do not finally decide the matter, particularly in young children. Where there are older children, such as those between the ages of 10 and 16, the Court gives greater weight to their wishes, but again, the children’s wishes alone do not decide the issue.

The legislation used with respect to child support for married parents is identical to the wording used for unmarried parents. The legislation is called the Child Support Guidelines, which sets out the amount of child support a support recipient will be awarded based on the income of the support payor. There is a table, and the basic amount of child support is called “table support.” It should be noted that in addition to child support, the support payor can be required to pay their proportionate share of what is referred to as “extra-ordinary expenses.” Those expenses would include contributions to childcare, if the custodial parent is working full time, contribution to medical/dental expenses and/or medical/dental insurance for a child, private school or tutoring, and university costs. The guiding principle for an award of extra-ordinary expenses is that the expense must be reasonable, having regard to the spending pattern of the family in respect to the children, while they were cohabiting. The legislation requires that each of the parents disclose and provide evidence of all of their sources of income. This means tax return information, bank statements, and letters from employers, to name a few.

The short answer is that the court does not distinguish between married parents and unmarried parents and always considers what is in the best interests of the children.

Evelyn Kohn Rayson is the founder of Rayson & Associates, a Toronto-based family-law firm. She has practiced solely in the area of Family Law since 1991 and belongs to the Ontario Bar Association, the National Association of Women and the Law, the Family Law Association and the Collaborative Family Law Association of Toronto.