Separation, Divorce and Custody

All too often those who choose to transition discover their spouse or significant partner is unable to cope with that change and a family separation ensues.   And so these individuals must struggle with all the challenges of transitioning, plus the added burden of dealing with a marital breakdown.

The good news is that the law treats transgendered parents like any other. There is no Canadian statute, law or judicial decision which states that a child is better off in the custody of a cisgender parent. Quite the contrary, the family courts are strongly disposed to ordering joint custody with both parents enjoying ample time with the children – whatever the gender identity of a parent might be.

And while spouses can frequently have trouble accepting their husband’s or wife’s transition, children generally do not.   I have heard reports from daycare workers that young children will proudly announce that they have two Dads or two Moms.   I have experienced first hand a client’s delight on hearing their child call them “Mom” for the first time.

It is true, however, that transgender parents often find themselves embroiled in custody disputes.    But again, this is because the cisgender spouse refuses to accept the transition, rather than any prejudicial treatment in the law or by our Courts.

Generally speaking custody issues are decided on the basis of what is best for the child.  A Judge who is asked to decide a custody issue will pronounce a care and control schedule consistent with the child’s best interests.   It is increasingly common for custody orders to provide for a child to spend roughly equal time with each parent.   But sometimes due to a parents working hours or because of the children’s sporting events or for other reasons the care and control schedule may stray from a strictly 50/50 custody arrangement.

But here’s the take away: there is no decision by a Judge in any jurisdiction in Canada that provides for a child spending less time in the company of a parent, because they are a trans or non-binary parent.