In your book How do we share our child? – Everything you need to succeed in shared custodyyou write that “parents should use the court for a custody dispute as a last resort.” Can you provide an overview of the other avenues?
Marie-Elaine Tremblay: The most common method is family mediation. There are accredited family mediators who are trained to support people during periods of separation. It is a forum where we can exchange ideas, talk about our fears and try to find a solution. Lawyers are not present, but you can consult outside. The success rate is quite high. We can also simply chat between ex-spouses. There are some who can still communicate. Sometimes, unfortunately, this is not the case. Negotiating with lawyers, but without going to court, is also an avenue. There is also conciliation that exists. A third party joins the dispute to help find a solution, without being a judge, without imposing a decision.
Sylvie Schirm: Another option is parental coaching. There are specialized coaches who will meet both parents and who will help them communicate better and establish basic rules. It is a forum where it is possible to exchange ideas and try to find solutions together. It allows you to understand the other’s position.
What proportion of separation cases go to court?
SS: According to the Superior Court, 20% of separation cases will go to court.
ME. T.: You have to understand that when you are married, you need a divorce decree. Judgment is mandatory to break up.
During mediation, some people fear that what they say during these meetings will be used against them if they ever go to court. Is this concern justified?
SS: As long as people have not made an agreement, confidentiality is assured. If there is an agreement, there is a risk that confidentiality will fall. This is a fairly complex concept in law. I tell my clients: have confidence in the confidentiality of mediation as long as you do not say “yes” to something. Besides, people should consult a lawyer in the process [même s’il n’a pas le droit d’assister aux rencontrer de médiation]. The mediator is not there to give advice. He does not have the right to say: “Madame, what Monsieur is offering you is correct, it is very generous, or you have the right to much more than that. » Going to see a lawyer doesn’t mean you’re going to go to court. At least, thanks to him, you will know your rights.
If the parents share custody of the child equally, should child support still be paid?
ME. T.: If both parents have 50-50 shared custody and both parents make $100,000, no one will pay child support. As soon as there is one who does a little more or who has a little more parental time, we rebalance everything with the pension.
When a judge has to decide in a child custody case, what will he take into consideration?
SS: The best interest of the child is the basic principle. It can be broken down into many things. What is the connection with both parents? Is there a parent trying to take the child away from the other parent? We will look at a host of criteria. But we must not forget that by doing this, we are letting a third party decide on our child’s life instead of negotiating and trying to find solutions.
ME. T.: The Court of Appeal lists the criteria for shared custody to be ordered. For example, communication is one. The proximity of residences too. If I’m in Trois-Rivières and my ex is in Montreal, is it too far? If my child is 9 years old and goes to school, yes, but if my child is 1 year old, no. They will apply these criteria with their view of what is in the interest of this child.
Throughout your careers, you have supported many families. What is the hardest thing for children when their parents separate?
In chorus: Parental conflict.
ME. T.: All custody arrangements are possible. Children will adapt if both parents are able to put their differences and romantic hurt aside. It’s really the conflict that is ruining the lives of children.
SS: This is what causes the most damage. It’s not the on-call schedule, it’s not the two residences.
Responses have been abbreviated and condensed for clarity and conciseness.
How do we share our child? – Everything you need to succeed in shared custody
Éditions Trécarré
152 pages