Script 142 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
If you’re thinking about separating from the other parent or have already separated, the continued parenting of your children may be your biggest concern. This script discusses custody and access under the Divorce Act and guardianship, parenting arrangements and contact under the Family Law Act. It applies to anyone who is a parent, whether they were spouses or not.
Which law applies?
Both the federal Divorce Act and the provincial Family Law Act talk about the care of children when their parents have separated. The Divorce Act applies to parents who are or were married to each other. The Family Law Act applies to all parents, whether they were in married or unmarried spousal relationship, were in a dating relationship or weren’t dating at all.
What does “custody” mean?
Custody is a term used by the Divorce Act. It means the right to exercise parental authority over a child, the right to say how a child is raised and make decisions on behalf of the child, about things like schooling and health care.
What are the different ways to decide custody?
Both spouses can have custody of a child after they separate, called joint custody, or only one spouse can have custody of a child, called sole custody. When a spouse has sole custody, only that spouse has parental authority over the child.
Custody is usually resolved by a written agreement between the parents, or by going to court and applying for an order about custody. Note that a court order always takes priority, so if you’re having difficulty resolving custody with the other spouse, you should apply to the court for a custody order.
Most of the time spouses have joint custody of their child. Sole custody can be awarded to a spouse if: there has been family violence; the other spouse has drug or alcohol problems; the spouses are constantly arguing with each other about parenting decisions; the other spouse has been absent from the child’s live; or for other similar reasons.
What does “access” mean?
Access is a term used by the Divorce Act. It usually refers to the visitation schedule of the spouse with the least amount of time with the children.
A spouse’s access can sometimes be subject to a requirement that the spouse do or not do something during the access visit, such as drinking alcohol or driving with the child in the car. Access that depends on certain requirements of a parent’s behaviour is called “conditional access”.
Where there is a serious risk to the child, a spouse’s access can be subject to the requirement that the access occur in the presence of another adult. This is called “supervised access”.
How is access decided?
Access is settled the same way as custody – either by court order, written agreement or the spouses’ informal arrangement. Where spouses must go to court, the court will make a decision based on the best interests of the child. The court’s primary concern is the best interests of the child.
What does “guardianship” mean?
Guardianship is a term used by the Family Law Act. Guardians are the people, usually parents, who are responsible for a child’s upbringing and wellbeing. Guardians exercise parental responsibilities and have parenting time with a child, discussed below.
Who is a guardian?
The Family Law Act says that parents who live together are the guardians of their child, during their relationship and after they separate. A parent who never lived with his or her child is not a guardian of the child unless he or she “regularly cares” for the child. People who are the parents of a child because of an assisted reproduction agreement are also the guardians of a child.
Someone who is not a guardian, including a parent who is a not guardian, can only become a guardian by a court order appointing him or her as a guardian or by being appointed as a guardian on a guardians death or incapacity?
How do you apply to be appointed as a guardian?
Only people who aren’t already guardians because of the presumptions in the Family Law Act must apply for guardianship. People applying for appointment as a guardian must apply to be appointed, and must complete a special form of affidavit required by the rules of court. This affidavit requires you to get a criminal records check and a records check from the Ministry for Children and Family Development, and to provide certain information about the children that are and have been in your care.
How do you appoint someone as guardian to act on your death or incapacity?
A guardian can appoint another person to become the guardian of his or her child upon death by will or by Form 2 of the Family Law Act Regulation. A guardian who is facing terminal illness or permanent mental incapacity can appoint another person to become a guardian when he or she is no longer able to act as guardian by Form 2.
A guardian cannot appoint a guardian with more parental responsibilities than those that she or he held at the time of the appointment.
What do “parental responsibilities” and “parenting time” mean?
Parental responsibilities is a term used by the Family Law Act. It refers to guardians’ responsibility for making decisions about how the child is nurtured and raised and the duty of making those decisions in the best interests of the child.
Parenting time is another term used by the Family Law Act. The time a guardian has with a child is parenting time. During a guardian’s parenting time, the guardian is responsible for the care of the child and decision-making about day-to-day matters involving the child.
People who are not guardians, including parents who are not guardians, do not have parental responsibilities or parenting time.
How are parental responsibilities and parenting time decided?
Parental responsibilities and parenting time are settled either by court order, written agreement or the guardian’s informal arrangement. Where guardians must go to court, the court will make a decision based only on the best interests of the child. The court’s primary concern is the best interests of the child.
Parental responsibilities can be shared between two or more guardians, meaning that that they are all responsible for making decisions about the child and must do so in consultation with one another. Parental responsibilities can be allocated among guardians, so that a guardian has sole responsibility for certain kinds of decisions, like about health care or schooling, and can make those decisions without having to consult the other guardians.
The arrangements made in an agreement or order for parental responsibilities and parenting time are known as “parenting arrangements.”
What is “contact”?
Contact is a term used by the Family Law Act. Contact is the time that someone who is not a guardian has with a child. Parents who are not guardians may have contact, as might grandparents, aunts and uncles, other family members or any one who has an important relationship with a child.
How is contact decided?
Contact is settled the same way as parenting time – either by court order, written agreement or the parties’ informal arrangement. Where people must go to court, the court will make a decision based only on the best interests of the child. The court’s primary concern is the best interests of the child.
Can a child decide whom to live with?
If a child is old enough and mature enough, the judge will consider the child’s wishes when determining arrangements for custody, parenting time and contact. The importance given to the child’s views will depend on the age and maturity of the child, the reason why the child wishes to live with a particular person, and how strongly the child feels about wanting to live with that person. But there is no particular age at which children have the right to decide who they will live with. However, in general the older the child is, the more weight the court will give to the child’s wishes. Usually, the wishes of a child over age 12 are taken into consideration, and an older teenager’s wishes are likely to be decisive.
What about “needs of the child assessments”?
Section 211 of the Family Law Act allows the court to order an assessment, prepared by a psychologist, a psychiatrist or another mental health professional, of:
- the wishes of a child;
- the needs of a child; and,
- the capacity of a person to meet the child’s needs.
These assessments will usually make a recommendation about the sort of parenting arrangements and contact that the assessor considers to be in the best interests of the child.
These assessments are known as needs of the child assessments. (Under the old Family Relations Act, these were known as “section 15 reports” or “custody and access reports”.) They can cost at least $5,000. A report can also be prepared for free by a Family Justice Counsellor, but it may take eight months or longer to complete.
What about “views of the child reports”?
Section 202 of the Family Law Act allows the court to decide how the evidence of a child will be received, which can include a views of the report prepared by a mental health professional, a Family Justice Counsellor or any one with special training, including a lawyer. These reports usually just describe a child’s views and wishes without performing an assessment or analysis of the child’s views and wishes.
Are orders and agreements about custody and access, and parenting arrangements and contact final?
No order or agreement about these issues is every absolutely final. Orders and agreements about custody and access, and parenting arrangements and contact may be changed whenever there has been a significant change in circumstances of the child, including because of a change in circumstances of another person, providing that the change affects the child’s best interests and justifies changing the order or setting aside the agreement.
Do you need a lawyer?
You may need a lawyer if you’re seeking a custody or guardianship order as part of a divorce proceeding in Supreme Court. Custody and guardianship orders can also be made in Family Court, in which case you may not need a lawyer because the court process is simpler and more user-friendly. If you go to Family Court, most court registries will require you to take a free government-sponsored “Parenting After Separation” course before you can be heard by the court.
Should you try to mediate or use collaborative settlement processes?
Mediation and collaborative settlement processes are excellent ways to help parents reach an agreement on custody and access, and guardianship, parenting arrangements and contact.
Mediation can help avoid a bitter court dispute – or going to court in the first place. The provincial government has trained mediators, called Family Justice Counsellors, who don’t charge for their services and are available to help couples come to a parenting agreement. Call Service BC at 604.660.2421 in the lower mainland, 250.387.6121 in Greater Victoria or 1.800.663.7867 elsewhere in BC. Remember that an agreement drafted by a Family Justice Counsellor will have long-term consequences and may be difficult to change, so be sure to get independent legal advice before signing it. Your lawyer can also refer you to a mediator. For more information on mediation, refer to script 111 on “Mediation and Collaborative Settlement Process”.
Collaborative settlement processes are a kind of negotiation where you and the other party, along with your respective lawyers, agree to work together to resolve the problems arising from your separation without going to court. Collaborative processes often involve child specialists who give advice to the parties and their lawyers about the child’s needs and how the child is experiencing their separation.
What should you do if the other parent won’t follow the order or agreement?
The Family Law Act has special provisions for the enforcement of orders and agreements for parenting time and contact. In special circumstances, the court can also require police to help enforce these orders and agreements, however this should be a last resort only.
If you’re afraid the other parent is about to take your children out of the country and not bring them back, see a lawyer immediately. There are special provisions in the Family Law Act that can help with this too.
Where can you get help or more information?
[updated March 2013]
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