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In Canada, being common-law does not automatically give both parents equal custody rights. Legal custody (now legally called โdecision-making responsibilityโ) depends on parentage and court orders under the Divorce Act (if married and divorcing) or your provinceโs family law (if not married).
Since you are in Canada, here is the precise process:
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1๏ธโฃ First: Clarify Your Legal Status
โ If BOTH parents are biological/legal parents:
โข You do not โregister custodyโ automatically just because you are common-law.
โข If you are separating and want formal custody rights, you must obtain:
โข A parenting agreement (written & signed), or
โข A court order
โ If your name is NOT on the childโs birth certificate:
You must first:
โข Establish legal parentage (if disputed)
โข Possibly apply for a declaration of parentage through court
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2๏ธโฃ If You Agree With the Other Parent
This is the simplest route.
Step A: Draft a Parenting Agreement
It should clearly state:
โข Decision-making responsibility (education, health, religion)
โข Parenting time schedule
โข Holiday schedule
โข Child support terms
You can:
โข Use a lawyer
โข Use a mediator
โข Use provincial templates
Step B: File It With the Court (Recommended)
Even if amicable, filing makes it enforceable.
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3๏ธโฃ If You Do NOT Agree
You must apply to family court for:
โข Decision-making responsibility
โข Parenting time
โข Child support (if applicable)
You file an application in:
โข Provincial family court (if not married)
โข Superior court (varies by province)
The judge decides based on:
โBest interests of the childโ standard.
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4๏ธโฃ Provincial Differences Matter
Family law is mostly provincial. For example:
โข In Ontario โ governed by the Childrenโs Law Reform Act
โข In British Columbia โ governed by the Family Law Act (BC)
โข In Alberta โ governed by the Family Law Act (Alberta)
Each province has slightly different forms and procedures.
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5๏ธโฃ Important Legal Points (Common-Law Specific)
โข Living together does NOT automatically create shared custody.
โข Mothers automatically have custody at birth unless:
โข Father is listed and involved, or
โข Court order says otherwise.
โข Child support obligations apply regardless of marital status.
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6๏ธโฃ What You Should Do Practically
1. Confirm your name is on birth certificate.
2. Decide if this is amicable or contested.
3. Consult a family lawyer (even 1-hour consultation helps).
4. File proper court forms if formal custody is needed.
