Both parents are equally entitled to custody
Section 20 of the Children’s Law Reform Act states that the father and the mother of a child are equally entitled to custody of the child. That means as a general rule, both parents are equally entitled to custody until separation.
Moving out can cause you to lose custody
The equal entitlement to custody is limited by s.20(4) of the CLRA, as that right can be suspended if the parents are separated and the child resides with one of the parents with the consent (express or implied) or acquiescence of the other. That means if you move out of the home and you leave your child with the other spouse, you could essentially be giving away custody to your spouse.
Instead of moving out, stay in another room in the house or even on the couch if you don’t want to lose custody.
Don’t alienate the other parent
Pursuant to section 16(10) of the Divorce Act, a custody order should ensure the child has as much contact with each spouse as is consistent with the best interests of the child. The court will consider the willingness of each spouse to facilitate contact between the child and the other spouse.
If there is evidence of your attempts to block your spouse from seeing your child, the court will not view this favourably and it will work against you in their determination of a custody order.
It is illegal to take your child against the custody order
Parental abduction, or kidnapping one’s own child in contravention of a custody order, is a criminal offence in Canada. A parent who takes, entices away, conceals, detains, receives or harbours their child in contravention of the custody provisions, with the intent to deprive a parent who has the lawful care of that child, is guilty of an indictable offence and can face up to 10 years in jail, or is guilty of an offence punishable on summary conviction.
For example, if you pick up your child from school as a “surprise”, in contravention of the custody order, it is an illegal act. It is crucial to obey the custody provisions and access schedule to avoid getting in trouble with the law.