Split Child Custody Parenting Time decisions are relatively uncommon. MacLean Law’s Split Child Custody Parenting Time lawyers act across Canada with family law offices in Vancouver, Calgary, Toronto, Surrey Kelowna, Victoria, and Fort St John. We also have one of Canada’s largest Mandarin and Cantonese speaking family law teams in the nation.
It can be difficult to come to a solution regarding custody when two children want different things. One option is split custody – where one sibling stays with one parent, and one sibling with the other. Such an arrangement can resolve issues where the children have different needs and preferences, however, it can also be a very difficult situation for both parents and children emotionally.
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Courts sometimes do order split custody for children, but it is very rare. There are a number of factors for the court to consider, and the best interests of the children always prevails. Kaye Booth one of our hardworking Calgary family lawyers takes the time to explain how Split Child Custody Parenting Time works.
In NM v CK, 2012 ABQB 388, the Mother applied for an order allowing her to relocate with the two Children, one who was a baby. The Father objected to the relocation. The Court considered split custody as a possible solution, where the older child could live with the Father, but ultimately decided against it (at paras 81-83):
There is also the consideration of the contact and bonding of the child with her baby half-sister. An additional factor that may be applicable in the circumstances is the separation of siblings. There is some authority supporting the principle of non-separation of siblings, where the emphasis is placed on the family unit and the bond created between children: see, e.g., Langtry v. Langtry (1997), 27 RFL (4th) 340, White v. White (1994), 151 NBR (2d) 10 (QB); Taylor v. Taylor (1987), 83 NBR (2d) 145 (QB).
In Jones v. Jones (1994), 122 Sask R 114 (QB), the court determined that while keeping siblings together is an important consideration, it is not determinative of the issue of custody. This is particularly so in cases where the children are not close in age. It does not appear that the proposition that children should not be separated has been elevated to a rule of law. It is desirable if it can be accomplished: Zinck v. Zinck (1973), 6 N.S.R. (2d) 622, 43 D.L.R. (3d) 157 (CA).
While this custody award is not contingent on this factor alone, I do consider the bond between the child and her half-sister to be an important factor in this case, certainly given their young ages and that the child has been a significant part of her half sister’s life since she was born in November 2011.
In Liu v Xu, 2020 BCSC 92, the parties signed a separation agreement that stated the parents would have split custody.
The Court set the agreement aside, and determined that split custody was not best for the children, as they had always lived together, they were close in age, and there was no good reason to separate them (at paras 106-107)
In Mitchell v. Mitchell, [1998] B.C.J. No. 1684 (S.C.) at para. 50, cited with approval in Poole v. Poole, 1999 BCCA 203 at para. 31, Justice Stromberg-Stein, then sitting in this Court, stated:
While there is no presumption of law to this effect, the best interests of children are, in many cases, served by a custody situation that avoids splitting siblings between the parents. See, for example, Lynch v. Lynch (1995), 2 R.F.L. (4th) 367 (Ont. Gen. Div.). However, splitting siblings may be appropriate in cases where there is a successful de facto situation and the children are settled and happy in the homes in which they live: Vandher [v. Vandher (23 March 1995), Vancouver D087757 (B.C.S.C.)].
Other than a short period of time when the parties’ son lived in Shanghai with Mr. Xu, the children have not been separated. Since the parties’ separation, they have resided together with Ms. Liu (other than the current temporary arrangement). The children are relatively close in age. As a result, I am not satisfied that the proposed parenting arrangements should be approved by this Court without further evidence to ensure that the best interests of each child are served.
In AHP v CAP, 1999 BCCA 203, the Mother had primary care of the youngest child, and the Father had primary care of the three older children. At trial, a judge concluded that it was in the best interests of the child that the child be with her brothers, and awarded custody to the Father. On appeal, The Court of Appeal reversed the decision, stating that keeping children together is an important factor when assessing whether split custody is appropriate but not the only factor (at para 22):
In the case at hand, keeping the siblings together is but one of several relevant considerations. While in no way suggested as an exhaustive list, other factors relevant to this case include stability and security, the status quo, bonding with the custodial parent, and willingness to facilitate access. Moreover, these factors are often inter-related and do not represent neat compartments that embody fixed criteria. Custody and access cases require an integrated assessment of all relevant factors and circumstances and an application of legal principles to the facts.
A review of the case law demonstrates how difficult it is for courts to assess the best parenting arrangement for children. While split custody can be the best solution for families, it is a rare remedy, and only ordered where the circumstances are such that it is in the best interests of the children. Courts will consider the age of the children, their preferences, and the bond they share with each other. If you need creative solutions on how to resolve parenting issues and custody, contact the experienced lawyers at MacLean Law today. We can discuss what arrangement may be best for your family.
