Contact J.N. Mukongolo – Family Lawyer Toronto, North York & Scarborough

Q – My girlfriend and I have been living together, and we have a child together, but we’ve decided to separate. She wants our child to live with her, and I will have our child come to visit with me. If I agree to this, will I lose custody?

A – No, you will not give up custody if you and your partner decide to separate, and you agree that the child will live most of the time with her, but that you will continue to be involved in making any decisions about the child.

As a parent of the child, you automatically have joint custody of the child with the other parent (i.e., both of you have the right to make decisions for the child). If you don’t visit with the child much, or don’t take an interest in the child’s day-to-day life, there is a risk that you may lose custody if your girlfriend later goes to court to try and get an order that she has sole custody. Her case will be stronger, since she will have been the one making the decisions for the child, and it will be easier to show that it is in the child’s best interests that she be the one with custody, since she has taken on most to all the responsibility for the child already.

Q – My wife has been a stay-at- home mother to our two children, aged 4 and 7. I work, and my job has very long hours during the week. We have been fighting a lot lately, and it’s making it difficult for us to agree on anything, including things to do with the children. Can I still have joint custody of the children with my wife upon separation if they stay with her when I move out?

A – In order for two people to have joint custody, they must be able to communicate with one another when it comes to the children. It is difficult to make a joint decision when every conversation turns into a fight.

Before you separate and live apart from one another, you and she should have a written agreement that sets out that you both intend that you have joint custody of the children. This will focus your attention on the intention to share the responsibility for the children. It will also be strong evidence in your favour should your wife later seek an order for sole custody from the court.

That being said, if your wife does take you to court seeking sole custody, and your communication has not improved, your wife will have a very strong case regardless of the agreement you signed. The children live primarily with their mother, and the court puts a lot of weight on the parent with primary care of the children. It is felt that she is likely to know what will be in the best interests of the children, and if she has the responsibility for the day-to-day care, then she should have the responsibility for decisions made for their benefit. Joint custody requires that the parents be able to work together; it is therefore best if you and your wife can focus on ways to discuss issues related to the children in a calmer and more co-operative manner than you might discuss other things.

Q – My wife says she is concerned about my drinking and says that I can only have supervised access to our six year old child. What does this mean and will a court order this?

A – Supervised access means that you may not be alone while you visit with your children. It can mean that you must visit your children at a specific person’s house, or that you must always bring that person with you when you visit the children. The person supervising can be a family member or a trusted third party. If this situation is not feasible, the parties can agree in writing, or the court can order, that the visits take place at an access centre.

Please feel free to contact us at or call 647-660-9832