I Want Sole Custody — Does That Just Mean the Kids Live With Me? Scarborough Chinese-Speaking Divorce Lawyer: Not the Same Thing

A lot of moms come in and the first thing they say is: “I want sole custody.”

I always ask one more question: when you say sole custody, what rights do you actually want? What do you want to decide for your child? What’s the thing you care about most?

And the answer is usually: “I just want the kids to live with me.”

That’s when I have to correct them: that’s not custody. That’s the kids living with you. Let me pull these two apart, because a lot of people mix them up once — and once is enough to get the agreement wrong.

What is “custody,” actually?

Here’s something most people don’t know: since the Divorce Act was amended in 2021, the word “custody” doesn’t exist in the law anymore. It’s now called decision-making responsibility.

It’s the same idea: who gets to make the major decisions. What counts as major? Which school the child goes to, public or private. Medical decisions — surgery, vaccinations. Religion — which faith, which holidays. Those are the big ones.

What people call “sole custody” is now sole decision-making responsibility: one parent calls the shots on all the major decisions, and the other parent doesn’t get a say. You want your child in that school, the other parent disagrees — doesn’t matter, you decide alone.

Joint decision-making responsibility is the reverse: the major decisions get made together.

What do you call it when the kids live with you?

That’s parenting time. Simply put: how the child’s time gets divided.

It can be split 50/50, the kids rotating between both homes. Or the kids can live primarily with one parent while the other sees them on weekends or weeknights. There’s no fixed formula — it depends on your family.

But there’s one big principle: keep the child’s life as it is — the status quo. Whatever the child’s life looked like before, try not to shake it up. Same home with mom, same school, same friends — keep it steady. Judges care about this more than anything. A child’s stability comes first. Whoever was actually raising the child day to day — the judge sees that clearly.

Being the primary caregiver means: the kids live with you day to day, they move when you move, and you handle the daily life — meals, routines, bedtime. But remember: that’s a different thing from “sole custody.” The kids living with you doesn’t mean all the major decisions are yours.

Do you want to make the decisions, or do you want to live with the kids?

Ask yourself: do you want to make every major decision alone, or do you just want the kids living with you?

Most moms actually want the second one: my parenting time, the kids live with me, I’m the primary caregiver. As for the major decisions — if he wants in on education, health, and religion, let him in. It doesn’t change your day-to-day life with the kids.

Once you separate the two, you know exactly what you’re asking for, and the agreement stops being a mess. If what you want is parenting time, lock down the parenting time. If you’re fine with him sharing the major decisions, write that in as joint. No need to fight over the words “sole custody” when that may not even be what you want.

Can the major decisions be negotiated separately?

Yes — and each one can be decided on its own. Who decides education, who decides health, who decides religion: negotiate them one by one, sole or joint, each item separately. It’s not the bundle people assume, where it’s all-or-nothing.

For example: education, health, and religion decided jointly; everything else not mentioned decided by mom alone. Or: education decided by mom alone, health decided jointly. Any combination works — it’s up to how you negotiate. Each item stands on its own; don’t let “package deal” thinking box you in.

Can mom travel with the kids and handle documents on her own?

Yes — pull these out and write them in clearly: mom can travel with the kids without his signature, and can apply for the kids’ passports and documents without his signature.

These need to be spelled out. Plenty of moms have been burned: nothing in the agreement, then a trip back home to visit family — he won’t sign, the passport doesn’t get issued, and the plane tickets go to waste. Write it in and you save yourself the hassle: no begging for a signature every time, no going back to court over small things.

Can we write the child support amount lower?

No. First, be clear: if the kids live primarily with mom, then child support has nothing to do with mom’s income. Unemployed, low income — doesn’t matter. Child support is calculated from his income. There’s a free website called supportcalculator: plug in his income and out comes the number — say, 1,820. That’s the table amount. Same for everyone; the judge does the same math.

One more thing: if his annual income is under $150,000, it’s the table amount, period. If it’s over $150,000, you can ask for more, based on the actual circumstances. The higher the income, the more room there is.

Some dads will try: talk mom into writing a lower number in the agreement, say 1,400, and top it up privately. Don’t agree to it.

Why? Because the court can do the math. The divorce application goes in, the judge looks: the table amount should be 1,820, you wrote 1,400 — doesn’t match. A busy judge might not look closely and the divorce order goes through. But a careful judge will run the numbers, spot the gap, and refuse the divorce order. Then you’re filing court documents and explaining yourself — explaining why the child support is below the national standard. Because in the court’s eyes, child support is the child’s money, not yours to split between the two of you — you can’t waive it or reduce it on the child’s behalf. And if he won’t cooperate at that point, the divorce order stays out of reach. Don’t trade a short-term saving for a long-term mess.

If you can’t tell whether you want custody or just the kids living with you, figure out what you actually want first — then write it into the agreement. Get it right the first time and you skip a lot of detours. Book an initial consultation (30 minutes, $220+HST). Call 647-930-6688.

This is general legal information only. Not legal advice. No lawyer-client relationship.