Children and Parenting after Separation

When parents separate, they have to make decisions about four important issues: where the children will live; how parenting decisions will be made; how often each of them will see the children; and, how the children will be provided for.

This chapter reviews the first three of these issues in detail. The fourth issue is covered in the Child Support chapter.

This introductory section provides an overview of the law on parenting after separation, and looks at traditional and developing concepts in this area of the law. It also discusses the interests that grandparents and other people, including people who are the guardians of children but not their parents, might have regarding the care of children.

Other sections of this chapter look more closely at some of the non-legal issues involved with the care of children, including:

1. parenting after separation,
2. guardianship, parenting arrangements and contact under the Family Law Act,
3. parenting arrangements and contact under the Divorce Act,
4. making changes to orders, awards and agreements about children, and
5. the problem of estrangement and alienation.

Other legal issues relating to parenting after separation, including family violence, naming children, and adopting children are discussed in other sections.

Introduction

There are two laws that talk about parenting after separation, the federal Divorce Act and the provincial Family Law Act. Both laws allow parents and other people to apply for orders about where the children will live and how much time each person will have with the children if they can't make an agreement about these issues themselves. Whenever the court is asked to make a decision about issues like these, the court's only concern is the children and the sort of parenting arrangements that are most likely to be in their best interests. The other sections in this chapter talk about how the court makes these decisions and the laws that apply to parents and other people responsible for children's care in different situations.

The Parenting after Separation section talks about some very important issues that don't involve legislation or the court, but are equally important:

1. how to protect children from conflict between their parents,
2. how to develop parenting plans, and
3. how to locate resources for separating and separated parents.

When parents separate, there is a lot more at stake than just where the children are going to be living tomorrow. Parents have an obligation to think in the long-term, and take a perspective that looks years down the road. How is their conflict going to affect their children? How can both parents maintain meaningful roles in their children's lives? How will the children adapt to the separation? When the children are older and look back on their childhood, what will they think of their parents' separation? And, perhaps most importantly, how can the children best be helped to grow and mature into adults with families of their own?

There's a lot more involved in making decisions about parenting after separation than what you'll find in the Divorce Act and the Family Law Act. The romantic relationship between the parents may be over, but they'll always be parents no matter the nature of their relationship with each other. Parents have a duty to their children to try to overcome their differences after separation and always put their children first, no matter how hard it is for them to cope with the emotional and legal issues that arise from the breakdown of their relationship with each other.

The Divorce Act and the Family Law Act

For married spouses, the law about parenting after separation is governed by the federal Divorce Act as well as the provincial Family Law Act. For unmarried spouses and other unmarried parents, the only law that applies is the Family Law Act. Although married spouses can ask for orders under both the Divorce Act and the Family Law Act, it's usually best to just pick one act or the other to deal with issues about parenting after separation.

Married spouses, decision-making responsibilities and parenting time

The Divorce Act talks about parenting after separation in terms of married spouses who have "decision-making responsibilities" for their children and have "parenting time" with their children. The Divorce Act started using this language on March 1, 2021. Before then, the Divorce Act talked about married spouses who had "custody" of their children and "access" to their children. The new language focuses more on the interests of children than the rights of parents, and is very similar to the language used by the Family Law Act.

Decision-making responsibilities are the responsibilities parents have to make important decisions on behalf of their children, about things like where the children go to school, how they're treated when they get sick and which sorts of extracurricular activities they'll participate in. Under the old Divorce Act, people with custody had the responsibility for making decisions like these. People other than married spouses may be able to ask for decision-making responsibilities, under certain conditions.

Parenting time is the schedule of the time that each parent has with their children. Under the old Divorce Act, we talked about the children's schedule in terms of access, but "access" only referred to the schedule of the parent who saw the children the least often. People other than married spouses may be able to ask for parenting time, under certain conditions.

A person who has decision-making responsibilities or parenting time is entitled to get information about the education, health and wellbeing of their children from anyone who has that information. A person who has parenting time is also entitled to make day-to-day decisions about the children during their parenting time, including emergency decisions.

Orders about decision-making responsibilities and parenting time are called "parenting orders." Agreements about decision-making responsibilities, parenting time and contact are called "parenting plans."

If you have an old agreement, award or order that talks about custody and access, you don't need to get a new agreement, award or order. What you need to do is understand how the new language applies to your agreement, award or order:

• Custody: If you have custody of your children, whether you had sole, joint or shared custody of your children, you now have decision-making responsibilities for your children. However, if your agreement, award or order limited the sort of decisions you could make on behalf of your children, those limits still apply. The language in the updated Divorce Act doesn't give you any more rights than you had before.
• Access: If you have access to your children, you and their other parent now have parenting time with your children. Even if it was the other parent who had access, the time when the children are with you is your parenting time.
• Access without custody: If you have access to your children but not custody of your children, you have parenting time with your children but you don't have any decision-making responsibilities for your children. The language in the updated Divorce Act doesn't give you any more rights than you had before.

Easy, right?

Guardians, parental responsibilities and parenting time

The Family Law Act talks about people who are guardians. Guardians are usually, but not always, the parents of a child. They can include people who are parents because of an assisted reproduction agreement. People other than parents may be able to ask for a court order appointing them as a guardian of a child, under certain conditions. Parents who are not guardians can be appointed as a guardian of their child by making an agreement with the child's other guardians or by asking for a court order appointing them as a guardian. Guardians have "parental responsibilities" for their children and have "parenting time" with their children.

Parental responsibilities are the responsibilities guardians have to make important decisions on behalf of their children, about things like where the children go to school, how they're treated when they get sick and which sorts of extracurricular activities they'll participate in. Only guardians can have parental responsibilities.

Parenting time is the schedule of the time that each guardian has with their children. Only guardians can have parenting time.

A guardian who has parental responsibilities is usually entitled to get information about their children, including information about the children's education and health. A guardian who has parenting time is also entitled to make day-to-day decisions about the children, including emergency decisions, and has care, control and supervision of the children during their parenting time.

Agreements, awards and orders about parental responsibilities and parenting time are called "parenting arrangements."

Contact

Under the Divorce Act, someone who is not a married spouse can ask for "contact" with a child, under certain conditions. Under the Family Law Act, a person who is not a guardian, including a parent who is not a guardian, can ask for "contact" with a child or make an agreement with the child's guardians to have contact with a child.

Contact is the schedule of a child's time with a person who is not a married spouse, under the Divorce Act, or not a guardian, under the Family Law Act.

Someone who has contact with a child is not entitled to get information about the education, health and wellbeing of the child and is not entitled to make day-to-day decisions about the child during their contact, including emergency decisions.

The best interests of the children

Whenever the court considers issues involving children, its first and foremost concern is the best interests of the children, not whatever the particular wishes of a parent might be, no matter how well-intentioned that parent is. It's not about you; it's about your kids. As a result, in any application concerning children you must show that the outcome you're looking for is the outcome that is in your children's best interests.

Sections 16.1 to 16.6 of the Divorce Act are about parenting orders and contact orders. Section 16 is about the best interests of children and says this:

(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

If family violence is present, and a factor under section 16(3)(j), section 16(4) provides a list of additional factors to help the court assess the impact of the family violence:

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Part 4 of the Family Law Act is about parenting arrangements and contact orders. Section 37 is about the best interests of children and says this:

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:

(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

If family violence is present, and a factor under sections 37(2)(g) and 37(2)(h), section 38 provides a list of additional factors to help judges and arbitrators assess the impact of the family violence:

For the purposes of section 37 (2) (g) and (h) [best interests of child], a court must consider all of the following:

(a) the nature and seriousness of the family violence;

(b) how recently the family violence occurred;

(c) the frequency of the family violence;

(d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;

(e) whether the family violence was directed toward the child;

(f) whether the child was exposed to family violence that was not directed toward the child;

(g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence;

(h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring;

(i) any other relevant matter.

As a result, when judges and arbitrators make orders and awards about decision-making responsibilities, parenting time and contact under the Divorce Act, or parental responsibilities, parenting time and contact under the Family Law Act, they must take into account a whole range of factors, including:

• What are the child's views and preferences, assume the child is old enough to express them?
• Who looked after the child most of the time during the marriage?
• Does the child have a stronger bond with one parent than the other?
• How much will each parent work to encourage the child to spend time with the other parent, and support the child's relationship with the other parent?
• What plans do the parents have to look after and care for the child into the future?
• How well can the parents cooperate and communicate with each other?
• How will the proposed order affect the child?
• Is the proposed order be in the child's long-term best interests?
• Will the proposed order disrupt the child's present life? Is there an established status quo that the child has already settled into?
• Will the proposal disrupt the child's schooling, or reduce the child's time with their friends and family?
• Has there been family violence, and how has the family violence impacted the family and the wellbeing of the child?

If you are asking for an order or award about parenting after separation, it is very important that you have read and understand the best-interests factors and that you think about how you can give evidence to the judge or arbitrator about the different factors.

Guardianship after separation

Under section 39 of the Family Law Act, the parents of a child are presumed to be the child's guardians, both while the parents are living together and after they separate. These parents are guardians in fact and in law and do not need a court order to give them guardianship of their children. They're guardians already! Other people may also be presumed to be the guardians of a child:

1. people who are parents under an assisted reproduction agreement, and
2. a parent who has never lived with the other parent but "regularly cares" for the child.

The Divorce Act does not make any presumptions about who has decision-making responsibilities for or parenting time with the children after separation.

Key legal concepts about parenting after separation

Figuring out the legal concepts relating to parenting after separation got a lot easier after the federal Divorce Act changed on March 1, 2021. Before it changed, the Divorce Act talked about parenting after separation in terms of "custody" and "access," which were a difficult fit with the provincial Family Law Act, which uses terms like "parental responsibilities," "parenting time" and "contact." Now the Divorce Act uses the terms "decision-making responsibilities," which are a lot like parental responsibilities, as well as "parenting time" and "contact." However, it's still only the Family Law Act that talks about "guardianship," and that's because making laws about guardianship is a provincial responsibility. Still, the harmony between the approach to parenting after separation by the Divorce Act with the approach taken by the Family Law Act is very welcome. It makes things a lot easier for separated and separating parents.

Guardianship

Not all that long ago, guardians were people who were responsible for the care of someone else, usually someone under a legal disability (like being under the age of majority or being mentally incompetent) or someone who couldn't otherwise care for themself (because of advanced age or significant mental illness), under a written agreement or court order. A parent, for example, might place their child into the care of someone else, with the understanding that they would look after their child, feed and clothe them, make sure they had a basic level of education, and so on. The person into whose care the child was given became the guardian of the child, and the child became their ward. The guardian had the same rights and responsibilities with respect to the child as the parent did, including the responsibility for making decisions about important aspects of the child's life, including the child's health care and education, just like a parent. In fact, the permission slips schools need adults to sign still ask for the signature of a student's "Parent or Guardian."

Under British Columbia's old Family Relations Act, which was the law in this province before the Family Law Act was introduced in 2013, separated parents would ask for orders appointing them as the guardians of their children, along with orders about having custody of their children. Parents could be the "sole guardians" of their children, which meant that only they could make decisions on behalf of their children, or have "joint guardianship," which meant that both of them were responsible for making decisions on behalf of their children.

The Family Law Act changed this. Instead of having to be appointed as the guardians of their children after separation, parents are usually presumed to be their children's guardians while their relationship is intact and after separation, but, just like in the old days, people who are not the parents of a child can still be appointed as a guardian of the child. Since not all parents are automatically the guardians of their children, and since people other than parents can still be made the guardians of a child, this means that what's important under the Family Law Act is being a guardian, not being a parent.

Under the Family Law Act, people who are the guardians of a child have "parental responsibilities" for the child and "parenting time" with the child, whether a guardian is a parent or someone else. The rights and responsibilities are the same. A parent who is not a guardian of their child may have "contact" with their child, but does not have parental responsibilities for their child or parenting time with their child. We'll talk about these concepts in more detail in this section and in the other sections in this chapter.

Parental responsibilities and decision-making responsibility

Parental responsibilities and decision-making responsibility are all about the job of parenting children. Parental responsibilities is a concept used by the provincial Family Law Act; decision-making responsibility is the concept used by the federal Divorce Act, but they both mean pretty much the same thing. Remember that the Divorce Act only applies to people who are, or used to be, married to each other, while the Family Law Act applies to parents and other people regardless of whether they are married spouses, unmarried spouses, just dating or something else.

Parental responsibilities and decision-making responsibility are both about making important decisions on behalf of children, from where they go to school to how they're treated when they get sick. The big difference is that parents exercise parental responsibilities during their relationship and after it breaks down, while decision-making responsibility only becomes important when married spouses go to court after they separate. But whether we're talking about parental responsibilities or decision-making responsibility, parents and guardians of a child must exercise their authority in the best interests of their children.

If the parents can’t agree on how to share parental responsibilities or decision-making responsibility, judges and arbitrators can make orders and awards about how they'll be shared. These orders and awards can be general or very specific. Sometimes a judge or an arbitrator will make a general order or award that parents will share this authority and must talk to each other before exercising their authority and making a decision about a child. If necessary, a judge or an arbitrator can make a specific order or award that only one parent will have this authority, or make an order or award that each parent will have the authority to make decisions but not others. An order or award like this might say that one parent has sole responsibility for making health care decisions, while the other has sole responsibility for making decisions about education, and they both have responsibility for making decisions about their child's extracurricular activities.

The different kinds of decisions that fall under decision-making responsibility is provided at section 2(1) of the Divorce Act:

Decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of

(a) health;

(b) education;

(c) culture, language, religion and spirituality; and

(d) significant extra-curricular activities.

This list is what lawyers call a non-exhaustive list, meaning that the list of decisions mentions some but not all of the decisions that someone with decision-making responsibility may have to make. Other decisions could include deciding where a child will live or deciding whether to give permission for a school field trip. The Family Law Act goes into a lot more detail.

The list of parental responsibilities provided by the Family Law Act appears at section 41:

Parental responsibilities with respect to a child are as follows:

(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

(b) making decisions respecting where the child will reside;

(c) making decisions respecting with whom the child will live and associate;

(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;

(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;

(f) subject to section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;

(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;

(h) giving, refusing or withdrawing consent for the child, if consent is required;

(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

(j) requesting and receiving from third parties health, education or other information respecting the child;

(k) subject to any applicable provincial legislation,

(i) starting, defending, compromising or settling any proceeding relating to the child, and

(ii) identifying, advancing and protecting the child's legal and financial interests;

(l) exercising any other responsibilities reasonably necessary to nurture the child's development.

Under section 16.4 of the Divorce Act, someone who has decision-making responsibility also has the right to ask for and get information about the child's wellbeing, including about their education and health, from anyone who has it, including the other spouse. Under section 41(j) of the Family Law Act, a guardian may or may not have the right to get information about the child depending on how the guardians share parental responsibilities.

Parenting time

Parenting time is the schedule of a child's time between married spouses under the federal Divorce Act. Under the provincial Family Law Act, it's the schedule of a child's time between the child's guardians. Parenting time means almost exactly the same thing, whether you're talking about the Divorce Act or the Family Law Act.

(The big difference between "access" under the old Divorce Act and "parenting time" under the new Divorce Act is that access referred to the schedule of the married spouse with the least amount of time with the child. Quite often, the child would live more with one parent than the other. The parent that the child mostly lived with had the child's primary residence, and the other parent had access to the child. Parenting time, on the other hand, refers to the schedule of the child's time with both parents. Both spouses have parenting time with their child, not just one of them.)

If the parents can’t agree on how they'll share the children's parenting time, judges and arbitrators can make orders and awards about how parenting time will be allocated between them. Neither the Divorce Act nor the Family Law Act makes any presumptions about how parenting time should be allocated between parents. All the Divorce Act has to say is that "a child should have as much time with each spouse as is consistent with the best interests of the child," which is not a presumption that children's time should be allocated equally between parents or allocated in some other way. The Family Law Act says explicitly that there is no allocation of parenting time that “is presumed to be in the best interests of a child.”

Like all decisions regarding children, the allocation of parenting time must be based on the child’s best interests. The best-interests factors under the Divorce Act are listed at section 16; the best-interests factors under the Family Law Act are listed at sections 37 and 38.

Under section 16.4 of the Divorce Act, someone who has decision-making responsibility also has the right to ask for and get information about the child's wellbeing, including about their education and health, from anyone who has it, including the other spouse. Under section 16.2, a spouse has the authority to make "day-to-day decisions" about the child during their parenting time. Day-to-day decisions includes small things like deciding whether to go the park or to the movies, deciding what clothes the child should wear, and deciding when the child should go to bed, as well as emergency decisions.

The Family Law Act says sort of the same thing in section 42(2):

During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child

Contact

Under the Divorce Act, someone who is not a married spouse may have "contact" with a child. Under the Family Law Act, someone who is not a guardian may have contact with a child, including parents who are not guardians.

Contact is an entitlement to spend time with a child, usually according to a fixed schedule, the way parenting time is allocated between parents. However, that's all contact is, just an entitlement to spend time with a child. Someone with contact does not have decision-making responsibility or parental responsibilities for the child. They do not have the right to get information about the child, and they do not have the right to make day-to-day decisions about the child.

If the child's parents and the person seeking contact can’t agree on whether and how much contact the person should have with the children, judges and arbitrators can make orders and awards about whether the person should have contact with the children and, if so, what the schedule of contact should be. Someone who wants to ask for contact under the Divorce Act must get the court's permission to ask for contact first.

Like all decisions regarding children, the decision about whether and how much contact a person should have with a child must be based on the child’s best interests. The best-interests factors under the Divorce Act are listed at section 16; the best-interests factors under the Family Law Act are listed at sections 37 and 38.

Parenting orders, parenting plans and parenting arrangements

Under the Divorce Act, court orders about parenting time or decision-making responsibility are called parenting orders. Agreements and awards about parenting time, decision-making responsibility or contact are called parenting plans. Court orders about contact are called, appropriately enough, contact orders.

Under the Family Law Act, agreements, awards and orders about parenting time or parental responsibilities are called parenting arrangements.

Reports and assessments about parenting after separation

Parents, guardians, arbitrators and judges sometimes need help in deciding what arrangements for parenting after separation are in the best interests of the children and need to get someone else's input. The people from whom input is usually sought include psychologists, clinical counsellors, family justice counsellors and social workers. Sometimes, input is often sought from the children themselves.

The sort of input people look for changes depending on the circumstances and the issues. Sometimes all that's needed is a short consultation with a mental health professional. However, if what's needed is advice, a report, an opinion or recommendations that will be used in mediation, collaborative negotiation, arbitration or a court proceeding, something more substantial may be required.

Under section 211(1) of the provincial Family Law Act, people can agree or the court can order that a mental health professional will conduct an assessment and prepare a report on one or more of:

1. the needs of a child,
2. the views of a child, and
3. the ability and willingness of the parties to meet the child's needs.

Most of the time, reports under section 211 are intended to cover all of these subjects. Reports like this talk about the family, the children, and the arrangements for parenting after separation that are in the best interests of the children, and are usually described as "section 211 reports," "parenting assessments" or something similar. Under the old Family Relations Act, these were called "section 15 reports" or "custody and access reports."

Since section 37(2)(b) of the Family Law Act requires parties and the court to consider the views of the child when deciding what is in the child's best interests, people can agree or the court can order that a mental health professional or anyone else with the right kind of training, including lawyers, will prepare a report on the child's views. These reports don't involve an assessment, they just report on the things the child has said to the person who interviewed them.

Reports that focus on the views of a child without an assessment are usually described as "views of the child reports," "hear the child reports" or "voice of the child reports." However they're described, the key difference between these reports and a report under section 211 is that they don't involve the interviewer's analysis or opinion of what the child has told them. These reports are non-evaluative; section 211 reports are evaluative.

Section 211 reports

Reports prepared under section 211 of the Family Law Act are prepared by psychologists, clinical counsellors, family justice counsellors and social workers. They must be in writing, and the court can make orders about who will prepare the report and how the report is to be paid for. Picking the sort of mental health professional who will prepare the assessment often depends on what type of assessment is required, and whether there's money to pay for it. Psychologists, clinical counsellors and social workers will charge for their work. Reports from family justice counsellors are free, but, because they're free, there's a huge demand on family justice counsellors' time and it may take many months before they can complete a section 211 report.

Regardless of which sort of mental health professional assesses the family, if the report is a full assessment, covering all of the subjects listed at section 211(1), the assessor will meet each of the parents separately and see each of them again with the children. If the children are old enough and mature enough, the assessor may speak to the children separately. The assessor may also speak to other people who know the parents and their children, such as friends, family and neighbours, the children's teachers, and any counsellors or therapists who might be involved with the family.

Once the assessment is finished, the assessor sends their assessment to the parties, and to the court if the assessment was court-ordered. These assessments can be used in two ways: to help the parties reach an agreement resolving their dispute; and, in court, to help persuade the judge that one party's proposal about parenting after separation is more likely to be in the best interests of the children than the proposal of the other party. When section 211 reports are used at trial, the person who prepared the report can be asked to come to court to give evidence about their assessment and their recommendations and can be cross-examined about how they conducted their assessment and how they reached their conclusions and recommendations.

It is important to remember that the function of assessors in court is to present their conclusions and recommendations and the evidence that they relied on, like the results of psychological tests and the observations they made during their interviews, in coming to those conclusions and recommendations. At the end of the day, it's always up to the judge to decide the parenting arrangements for the children. The Supreme Court discussed the purposes of custody and access reports in a 2001 case called Gupta v. Gupta, 2001 BCSC 649. The court's comments in that case refer to the old term for these reports (which were known as "section 15 reports" at the time), but thesee comments are just as applicable to assessments under section 211 of the Family Law Act:

"[A report's purpose] is to assist the Court in determining the issues before it, including the paramount issues of what is in the best interests of the children. The section itself contemplates that the person doing the investigation must be approved by the Court, and must be independent or neutral. ... The investigation is carried out for the purposes of the Court, and in the best interests of the children, and not those of the partial parents who are embroiled in what is seen as the dispute of their lives, who generally represent the extremes of every issue, and whose evidence is often found to be coloured to say the least."

Family justice counsellors

When people cannot afford the cost of a report from a psychologist, clinical counsellor or social workers, the court may order that an assessment be prepared by a family justice counsellor. Unless the parties agree to something else, the Provincial Court will almost always order that a report be prepared by a family justice counsellor when a report will be useful. The assessments of family justice counsellors are free.

Because of high demand, assessments prepared by family justice counsellors may take up to a year or more to complete.

Psychologists, counsellors and social workers

Assessments are also prepared by privately-retained mental health professionals. Assessments prepared by a psychologist usually include psychological testing.

The cost of these assessments can range from $5,000 to $20,000, depending on the number of children involved, where the children and the parents or guardians live, and the amount of work that needs to be done. They can usually be completed in three to six months.

Views of the child reports

Section 37(2)(b) of the Family Law Act requires the parents and the court to consider the views of the child when making decisions about what is in their best interests. Section 202 allows the court to decide how the child’s views will be heard and presented.

The views of a child can be presented to the court in a number of ways, including through:

1. the parties' evidence,
2. letters the child might write to a mediator, an arbitrator or the court,
3. a lawyer appointed to represent the child, and
4. an interview with the mediator, the arbitrator or the judge.

There are plenty of advantages and disadvantages to each. Hearing what children have to say though the parties is cheap, but parties often disagree about what the children have said. Letters from children are also cheap, but it's hard to know why the children decided to write the letter and whether a party told the child what to put in their letter. Lawyers for children can play an important role in presenting the children's views in an arbitration or in court, but they charge for their services. Interviews with the mediator or a decision-maker can be inexpensive, but not all mediators, arbitrators or judges are comfortable speaking to children.

Views of the child reports are a good alternative. Views of the child reports give children an opportunity to express their views to a neutral person who listens to them, and then prepares a written report for their parents, the mediator, the arbitrator or the judge. Because they are brief and don't require the interviewer to conduct an assessment or express an opinion, they can be produced quickly, sometimes the same day, and are relatively inexpensive.

These reports are prepared by trained, neutral professionals, usually a mental health professional, lawyer, mediator, or someone else with special training. The interviewer will speak to the child, sometimes more than once, and then write a report summarizing what the child has said and agreed that the interviewer may repeat in their report. These reports are different than other reports because all they talk about is what the child has told the interviewer.

For information on to how get a views of the child report, see How Do I Get a Views of the Child Report?. It's located in the How Do I? part of this resource, in the section Other Litigation Issues.

Family justice counsellors

Family justice counsellors prepare views of the child reports for free, but because there is such a demand for these reports, and so few family justice counsellors trained to prepare them, there can be a delay of six months or more before the report is finished.

Psychologists, counsellors and social workers

The reports of mental health professionals can be prepared as quickly as the professional's calendar allows, sometimes the same day, but more typically within one to four weeks. The cost of these reports can range from $500 to $2,500, depending on the number of children involved and the professional's hourly rate.

The website of the BC Hear the Child Society has a list of some of the professionals in British Columbia who are trained to prepare views of the child reports, and where those professionals work. There are other professionals in the province who are trained to prepare these reports but are not on the society's list.

Lawyers

The reports of lawyers can be prepared as quickly as the lawyer's calendar allows, sometimes the same day, but more typically within one to four weeks. The cost of these reports changes depending on the number of children, the lawyers' hourly rate — some offer a discounted rate for this sort of work — and whether the lawyer will interview the child and prepare their report for a fixed, flat fee. Similar to the reports of mental health professionals, lawyers' reports may cost anywhere from $500 to $3,500.

The website of the BC Hear the Child Society has a list of some of lawyers who are trained to prepare views of the child reports, and where those lawyers work. There are other lawyers in the province who are trained to prepare these reports but are not on the society's list.

Children's caregivers and extended family

People other than a child's biological parents may also have an interest in a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles, and so forth — although there's no reason at all why someone else, like an unrelated long-term caregiver or neighbour, couldn't also be important to a child. Most often, however, it's grandparents who feel the need to seek a legal role in their grandchildren's lives. For that reason, this discussion is written with grandparents in mind, although it applies equally to other people who are not a parent of a child.

Grandparents and other people who are not parents normally become involved in court proceedings dealing with children, as parties in their own right, in only a few situations:

• where one or both of the guardians of the children are dead,
• where one or both of the guardians have abandoned the children or the care of the children,
• where there are serious concerns about the fitness of the guardians to care for the children, or
• where they are being denied time or involvement with the children.

Their concerns are usually about:

• getting or maintaining contact with the children,
• supervising the parenting of the children when they are with a guardian, or
• being appointed as a guardian of the children.

No matter how valid or legitimate a grandparent's or other non-parent's concerns might be, the court will place a great deal of weight on the wishes of the parents. In a 2003 case of the B.C. Supreme Court, M.(D.W.) v. M.(J.S.), 2003 BCSC 1229, the court said that while it must give "paramount consideration" to the best interests of the child, "significant deference must be accorded the custodial parent and their ability to determine the child’s best interests."

Legislation

Two laws might apply to non-parents seeking guardianship of or contact with children.

Where the children's parents or guardians are already in court about the children, the federal Divorce Act applies, if the guardians are or were married. Otherwise, the provincial Family Law Act applies. If the parents or guardians are not involved in a court proceeding between each other, the Family Law Act applies.

Each law has different rules about how and when non-parents can apply in court, and it's important to understand which law might be applicable.

The Divorce Act

According to section 16(1) of the Divorce Act, the court can make an order for access or custody on the application of a spouse or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application.

Since we're talking about the Divorce Act, a court proceeding must have already started between married spouses or formerly married spouses before the grandparents can step in; there must be an existing proceeding in which to bring the application. A grandparent cannot start a court proceeding under the Divorce Act, since the act only applies to disputes between married spouses.

The Family Law Act

The Family Law Act talks about guardians who have parental responsibilities and have parenting time with children. The act also talks about people who are not guardians, but are people who have contact with a child.

Any person can apply to be appointed as the guardian of a child under section 51 of the act. However, these applications can be difficult and time-consuming and the court must be satisfied that the appointment is in the best interests of the child. An applicant who is applying to become the guardian of a child must fill out a special affidavit required by the Provincial Court (Family) Rules and the Supreme Court Family Rules. The affidavit covers:

• the applicant's relationship to the child,
• the other children currently in the care of the applicant,
• any history of family violence that might affect the child, and
• any previous civil or criminal court proceedings related to the best interests of the child.

Applicants must also get a new criminal records check, and a records check from the Ministry of Children and Family Development (MCFD).

Any person can apply for contact with a child under section 59 of the act. The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check or an MCFD records check done.

Custody and guardianship

There is a strong presumption in favour of the natural or adoptive parents of the children. The court will generally be inclined to allow the children to remain with their parent or parents unless a strong case can be shown that the parents are neglectful and that the children are suffering in their care. To quote from a 1992 case of the British Columbia Supreme Court, Reid v. Watts, 1992 CanLII 916 (BC SC), Vancouver Registry No. A913221:

"Parental claims will not be lightly set aside except in clear cases where the welfare of a child cannot otherwise be achieved."

The Supreme Court of Canada emphasized the children's best interests a bit more strongly in Racine v. Woods, [1983] 2 SCR 173, a case from 1983:

"The law no longer treats children as the property of those who gave them birth but focuses on what is in their best interests."

Nevertheless, grandparents and other non-parents who are seeking custody or guardianship of a child will face a difficult challenge, especially where both guardians are still in the picture, even if grandparents and other non-parents have been actively involved in caring for the children themselves. Since actual, concrete harm must usually be shown before grandparents are awarded custody, it can be critical to gather as much documentary evidence as possible. Some helpful sources include:

• police records,
• the records of social workers involved with the children,
• files from the Ministry for Children and Families, and
• a psychologist's report.

Factors that the courts have taken into consideration in awarding custody to a non-parent have included:

• ill-treatment, mistreatment, and neglect of the children,
• chronic drug or alcohol use, a partying type of lifestyle,
• instability of the guardians' lifestyle and living situation,
• abandonment of the children by the guardians, or an existing status quo in which the non-parent is primarily responsible for the care of the children, and
• poor parenting skills on the part of the guardian.

Grandparents and other non-parents shouldn't be too discouraged by the generally pessimistic tone of this discussion. There are quite a few cases in which grandparents have been awarded custody, guardianship, and/or contact with their grandchildren. It is possible to succeed on a custody or guardianship application, although the chances of success depend wholly on the circumstances of each case. For example, in a BC Supreme Court decision Popovic v. Andjelic, 2014 BCSC 2522, the child and her mother resided with the maternal grandparents. The child's father lived in another country. After the mother died suddenly, the grandparents applied to be appointed the guardians of the child and the court granted their request. The father also remained a guardian but without parental responsibilities.

Access and contact

There is a big difference between seeking custody or guardianship and seeking access or contact. In custody cases, the courts are concerned with the fundamental living arrangements and the health and welfare of the children. In court proceedings for access or contact, the parent usually has custody and no one is challenging the right of the parent to control their child's upbringing. As a result, the court will place an even greater emphasis on the parent's discretion and judgment.

Grandparents and other non-parents do not have a presumptive right of access to or contact with children under either the Divorce Act or the Family Law Act, but they can ask the court to make an order giving them access to or contact with their grandchildren. The 1993 British Columbia case of Chapman v. Chapman, 1993 CanLII 2598 (BC SC) sets out the general rules governing applications for access or contact by non-parents:

• The burden is on the non-parent to show that the proposed access or contact is in the child's best interests.
• The child's guardians have a significant role and the court should be slow to interfere with the guardians' discretion, and should only do so when satisfied that the access or contact is in the child's best interests.
• It is not in the child's best interests to be placed in circumstances of conflict between guardians and non-parents, and access or contact should not be given where it would only escalate the conflict between the parties.
• Non-parents may also have to demonstrate that they offer some positive benefit to the child before access or contact will be allowed, and they must demonstrate that the child's time with them will be in the child's best interests. Normally, grandparents and other non-parents are allowed only the amount of access or contact that the guardians will agree to.

Where both guardians are still in the picture, the court will usually require that grandparents' access or contact occurs during the time that their child has the grandchild. In other words, maternal grandparents will usually have access or contact during the mother's time with the child and the paternal grandparents will have access or contact during the father's time with the child. See the B.C. Provincial Court decision called N.H. v. D.H., 2013 BCPC 413.

Where only one guardian is in the picture, the court will usually determine what access or contact the grandparents ought to have, independently of the interests of the guardian.

As with applications for custody or guardianship, grandparents and other non-parents should not be discouraged by the generally pessimistic tone of this discussion. There are numerous cases in which grandparents have been awarded time with their grandchildren; it is possible to succeed on an application for access or contact.

Financial support

When a non-parent obtains custody of a child or an order that the child live mostly with them, that person can apply for child support to be paid by the parents or guardians of the child. The same rules will apply to a non-parent's application for child support as apply to a guardian's application, except that grandparents and other non-parents can only apply for child support under the Family Law Act; they cannot apply under the Divorce Act. See section 147 and 149 of the Family Law Act.

Grandparents are also entitled to ask for financial support from the provincial government to help meet the cost of caring for any grandchildren in their care. The province of British Columbia pays grandparents who are looking after their grandchildren at the same rate as foster parents. It's not a princely sum, but it's better than a kick in the teeth.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Federal Child Support Guidelines
• Provincial Court (Family) Rules
• Supreme Court Family Rules

Links

• Ministry of Attorney General's website "Criminal Record Check BC"
• Canadian Police Information Centre (CPIC)
• Grandparents Raising Grandchildren Support Line
• Clicklaw Common Question on Benefits for Grandparents Raising Grandchildren
• Dial-A-Law Script "Custody and Access, Guardianship, Parenting Arrangements and Contact"
• Legal Services Society's Family Law website's information page "Children"
• Legal Services Society's Family Law website's information page "Parenting & Guardianship"
• Legal Services Society's fact sheet "How to Become a Child's Guardian"
• BC Ministry of Attorney General's website "Support and Resources for Dealing with Separation and Divorce"
• BC Ministry of Children and Family Development's website "Extended Family Program"
• Canadian Bar Association's Successfully Parenting Apart: A Toolkit

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Mary Mouat, QC and Samantha Rapoport, April 15, 2019.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.