Difference between pages "Parenting Orders, Guardianship, and Contact (3:XI)" and "Children and the Law (3:XII)"

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{{LSLAP Manual TOC|expanded = family}}
{{LSLAP Manual TOC|expanded = family}}


== A. General ==
== A. Relevant Ages ==


Disputes over custody of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Custody decisions can always be changed, however, courts rarely make such changes. Thus, the decision about who gets interim custody is particularly important. Children usually stay with the parent who has provided primary care in the past and who can spend the most time with them. Sometimes, courts will order joint custody on an interim basis so that neither parent’s position is prejudiced.
=== 1. Age of Majority ===


The best interests of the child is the '''only''' consideration in determining custody and access and parenting arrangements.  
The [http://canlii.ca/t/84gw ''Age of Majority Act'', RSBC 1996, c 7], s 1 provides that the age of majority in B.C. is '''19''' years. Section 1 also applies to private documents, such as wills. A person’s age is determined by the provisions set forth in s 25(8) of the [http://canlii.ca/t/84gw ''Interpretation Act'', RSBC 1996, c 238].


In addition to custody, courts can also make decisions regarding guardianship of minor children. Guardianship gives a parent or other person “a full and active” role in determining the course of a child’s life and upbringing (see ''e.g.'' [http://canlii.ca/t/23r7t ''Charlton v Charlton'', [1980<nowiki>]</nowiki> BCJ No 22]). There is considerable overlap between the two, but it is useful to note that while having custody usually includes having guardianship, the reverse is often not true. This distinction is impacted somewhat by the ''FLA'' as the term “Guardianship” subsumes all the rights and responsibilities of a parent and there is no longer reference to “Custody”.  
=== 2. Other Relevant Ages ===


The case law on custody and guardianship has developed to the point where there is a presumption in favour of joint custody or both parents being guardians(although there is no legislative presumption). A parent seeking sole custody will generally have to show that there is a serious defect in the other person’s parenting skills, that the other person is geographically distant, or that the parents are utterly unable to communicate without fighting before the Court will consider granting such an application, and in the last case, the Court may explore other options such as Parenting Coordination or parcelling out decision making and responsibilities to address the communication issue instead of granting sole custody to one parent.
==== a) Sexual Consent ====


== B. Legislation ==
As of 1890, the age of consent for sexual activity was set at 14 years. Recently, the age of consent in Canada has been changed from 14 to '''16 years''' ([http://canlii.ca/t/52mk5 ''Tackling Violent Crime Act'', Bill C-2, An Act to amend the ''Criminal Code'' and to make consequential amendments to other Acts, 39th Parliament, 2nd Session, October 2007, effective May 1st, 2008]).  However, if the sexual activity involves exploitative activity, such as prostitution, pornography or where there is a relationship of trust, authority or dependency, the age of consent is 18 years.  


=== 1. Divorce Act ===
Section 150.1(3) of the ''Criminal Code'' provides what is often referred to as a “close in age” or “peer group” exception: a 12 or 13 year old can consent to engage in sexual activity with another person who is less than two years older and with whom there is no relationship of trust, authority or dependency. A 14 or 15 year old can consent to engage in sexual activity with a partner who is less than five years older with whom there is no relationship of trust, authority or dependency. An exception is also available for pre-existing marriages and equivalent relationships.


The ''DA'' only speaks of access and custody. Under s 16, the Supreme Court may make an order for custody. This order will supersede any  existing ''FLA'' orders, which cover custody, access, and guardianship, and can be registered for enforcement with any other Superior Provincial Court in Canada. The Supreme Court can also grant interim custody before a divorce action is heard.
==== b) Marriage ====


The ''DA'' applies only to married couples. Under the Act, the person making the application for custody must have been “habitually resident” in the province for at least one year prior.
Both parties to the marriage must be at least 19 years old. However, the [http://canlii.ca/t/846b ''Marriage Act'', RSBC 1996, c 282], provides that individuals between the ages of 16 and 19 may marry without the consent of anyone if they are a widower or widow (s 28(1)), and that other persons between the ages of 16 and 19 may marry '''if they have the consent of''':
**a) both parents or of the parent having sole guardianship, or the surviving parent (s 28(1)(a);
**b) a lawfully appointed guardian of that person (s 28(1)(b));
**c) the Public Guardian or the Supreme Court if both parents are dead and there is no lawfully appointed guardian (s 28(1)(c)); or
**d) a judge of the Supreme Court (where the person whose consent is required cannot be located, or where their consent is unreasonably withheld) (s 28(2)).  


As of March 1, 2021, s 16 of the DA will be repealed and replaced. Under the new provisions of s 16, the court will only consider the best interests of the child in the course of making a parenting order or a contact order, and when allocating parenting time. The new subsections 16(2-6) outline the factors under consideration when “best interest of the child” is assessed. The updated section 16(4) outlines the role of family violence in assessing the best interests of the child (see Section VIII: Family Violence).  
No person under the age of 16 can marry unless the marriage is shown to a Supreme Court judge to be expedient and in the interest of the parties (s 29). If the parent or guardian “unreasonably or from undue motives refuses or withholds consent to the marriage,” a minor may apply to court for a declaration to allow the marriage (s 28(2)).  


Additionally, the amendments to the DA will result in changes to the terms of guardianship:
Section 28(6) provides that a marriage of a minor must not be solemnized, and a license must not be issued, unless a birth certificate or other satisfactory proof of age has been produced to the issuer of marriage licenses or to the religious representative.
*Replacing of the terms “custody” and “custody order” with “parenting time” and “parenting order”.
*Using the term “contact order” to characterize time spent with someone other than a spouse, including grandparents.
*Adding the term “decision-making responsibility” to define a non-exhaustive list of areas of significant weight and how decisions about those areas must be made (with the “best interests of the child” in mind).  


The aim of these changes is to emphasize the “best interests of the child” by focusing on relationships with children.  
However, s 30 provides that failure to comply with ss 28 or 29 will not invalidate a marriage that has taken place. In other words, if someone manages to get married at 15 and obtains a valid marriage license, the marriage is valid.


=== 2. Family Law Act ===
== B. Child Abduction ==


Among a plethora of changes to the general family law in BC, the Act makes the following changes to the law surrounding guardianship:
=== 1. Criminal Code ===
*Replace the terms “custody” and “access” with “guardianship”, “parenting time”, and “contact”.
*Define “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements.
*Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.
*Under the ''FLA'', the terms custody and access are no longer used – only guardianship will be considered.
*Additionally, the “best interests of the child” is no longer the paramount consideration under the ''FLA''; it is the only consideration.  


== C. Courts ==
Sections 280 to 285 of the Criminal Code deal with the offences of abduction. Section 282(1)provides that:


=== 1. Supreme Court ===
Everyone who, being the parent, guardian or person having the lawful care or charge of a person under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that person in contravention to the custody provisions of a custody order in relation to that person made by a court anywhere in Canada with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person of the possession of that person is guilty of an indictable offence (maximum 10 years imprisonment)... or an offence punishable on summary conviction.


The Supreme Court has jurisdiction to deal with all matters relating to custody, guardianship and access to children, pursuant to the ''DA'', the ''FLA'', and the ''CFCSA''. Although, the Court almost never deals with the ''CFCSA'' unless there is the matter of adoption to be considered. The Supreme Court also has jurisdiction over orders restraining contact or entry to the matrimonial home.  
Section 283 creates a similar offence for circumstances in which there is no custody order.  


The Supreme Court has ''parens patriae'' jurisdiction over all children in the province. In operation, this can allow the Court to transcend the statutory letter of the law in drafting orders that best represent the best interests of the child.  
:'''NOTE:''' One should be especially careful when giving advice in custody disputes to avoid inadvertently giving advice that may lead to the commission of these offences. If there is evidence that a parent may abduct a child, or if there is evidence that visits are very “disturbing and harmful”, access may be denied. See ''Re Sharp'' (1962), 36 DLR (2d) 328 (BCCA).


A written agreement about custody or guardianship may be given the force of a court order under section 44 of the ''FLA''. Any orders made under the ''FRA'' are still in force. An order made under the ''DA'' can be registered for enforcement in any other province’s Supreme Court registry.
=== 2. Child Abduction Convention ===


=== 2. Provincial Court ===
The [https://www.hcch.net/en/instruments/conventions/full-text/?cid=24 ''Hague Convention on the Civil Aspects of International Child Abduction''] enables a person whose custody rights have been violated to apply to a “Central Authority” (each party to the convention must create such a body) for the voluntary return of the child, or to apply for a court order. Keep in mind that not every country is a signatory to the ''Hague Convention''. Applications can be made either in the person’s jurisdiction or in the jurisdiction to which the child has been abducted.  


The Provincial Court has jurisdiction to deal with all matters relating to custody, guardianship and access to children, and the ''Child, Family and Community Service Act'' [''CFCSA'']. This includes restraining orders but does not include orders restraining entry to the matrimonial home. A written agreement about custody or guardianship may be given the force of a court order, or s 44 of the ''FLA'', if it is filed in court.  
Each Central Authority has several tasks:
*i) to discover the whereabouts of the child;
*ii) to take precautions to prevent harm to the child;
*iii) to encourage voluntary return of the child or some other agreeable arrangement;
*iv) to facilitate administrative processes; and
*v) to arrange for legal advice where necessary.  


== D. Custody ==
It appears that the Convention applies where the parents are formally separated and the child has been in the sole custody of one parent.  


Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the ''Family Law Act'' is in force, do not need special transition sections. Section 4 of the [http://canlii.ca/t/844q ''Interpretation Act''] provides a default rule that the Act will be used upon it becoming effective, so cases started under the ''FRA'' will be determined under the ''FLA''.  
Finally, it should be noted that the Central Authority does not decide the merits of any custody order. It is merely an enforcement agency.  


In the absence of a court order or a written agreement, custody of a child remains with the person with whom the child usually resides. One must bear in mind that the Act does not touch on day-to-day life until it is invoked, usually by filing a lawsuit or by making an application.
A federal coordinator of the Department of Justice deals with abductions to France, Switzerland, Portugal and Canada. The contact number is (613) 995-6426.  


=== 1. Factors in Awarding Custody ===
If the child has been taken to another jurisdiction, contact the Department of External Affairs, 125 Sussex Drive Ottawa, K1A 0G2. Attention: J.L.A.  The contact number is (613) 995-8807.  


The factors that the Court must consider in determining the “best interests of the child” are set out in, s 37 of the ''FLA'':
A further resource in the case of abductions and violations of custody orders is the office of the Child Youth and Family Advocate, 600-595 Howe Street, Vancouver, BC. The contact number is (604) 775-3203.


* (a) the child's health and emotional well-being;
== C. Discipline ==
* (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 their 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 their 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.


and at s 16(8-10) of the ''DA'':
The ''Criminal Code'' (s 43) allows a parent, a person standing in the place of a parent, or a school teacher to discipline a child, by way of correction, provided that only reasonable force is used. However, section 76(3) of the [http://canlii.ca/t/84c4 ''School Act'', RSBC 1996, c 412] requires that teachers ensure the discipline is similar to that of a kind, firm, and judicious parent, and must not include the use of corporal punishment.


* (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
The Supreme Court of Canada examined s 43 in [http://canlii.ca/t/1g990 ''Canadian Foundation for Children, Youth and the Law v. Canada'', [2004<nowiki>]</nowiki> SCC 4, 16 C.R. (6th) 203]. The Court held that section 43 does not violate the constitutional rights of children. The discipline must be “by way of correction” meaning “only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of [their] behaviour” (para 24). Furthermore, the Court provided a comprehensive definition of “reasonable force”:
* (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
* (10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.


As of March 1, 2021, s 16(8-10) of the DA will be repealed. The relevant replacements are s 16(1, 5-6):
Generally, section 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver's frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered.


*(1) The term “parenting time” will replace “custody” in the DA.)
== D. Child Protection ==
*(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
*(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.


These factors should not be viewed as a checklist. Rather, the discretionary, contextual, and complex nature of custody cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interests argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.  
Under the [http://canlii.ca/t/84dv ''Child, Family and Community Service Act'' [''CFCSA''<nowiki>]</nowiki>], a Director or member of the municipal or provincial police forces can apprehend any child under the age of 19 years when the child is believed to be in need of protection or care. Section 6 lists conditions justifying temporary protective custody under this Act.  


The Court will generally consider the child’s health and emotional well-being, his or her education and training and the love, affection and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a custody order relating to a teenager to be practical, it  must reasonably conform to the wishes of the child ([http://canlii.ca/t/1dxml ''O’Connell v McIndoe'' (1998), 42 R.F.L. (4th) 77 (BCCA)], [http://canlii.ca/t/23fnw ''Alexander v Alexander'' (1988), 15 R.F.L. (3d) 363 (BCCA)]).  
Within seven days after the child’s removal, a Director must attend Supreme or Provincial Court for a presentation hearing. The Director must, if possible, inform the child, if 12 years of age or over, andeach parent of the time, date, and place of the hearing. If the situation warrants it, a hearing may result in temporary (or permanent) custody of the child being given to the Director or some other agency.  


Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality and moral fitness of each parent. However, there is no presumption against the separation of siblings ([http://canlii.ca/t/546m ''P (AH) v P (AC)'', 1999 BCCA 203]). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also  considers psychological, spiritual, and emotional factors ([http://canlii.ca/t/1fv1n ''King v Low'',(1985), 44 R.F.L. (2d) 113 (SCC)]). The Court will take into account  the personality, character, stability, and conduct of a parent, if appropriate ([http://canlii.ca/t/23fhc ''Bell v Kirk'' (1986), 3 R.F.L. (3d) 377 (BCCA)]).  
=== 1. Principles ===


Agreements between parties regarding custody do not oust the Court’s jurisdiction. An agreement is important, but only one of several factors to be taken into consideration when determining the best interests of the child. The degree of bonding between child and parent is also taken  into consideration. The biological link does not outweigh other considerations, but when all other factors are equal, the custody of the child is best served with the biological parents ([http://canlii.ca/t/1fnkk ''L (A) v K (D)'',2000 BCCA 455]; [http://canlii.ca/t/1kvhg ''H (CR) v H. (BA)'', 2005 BCCA 277]).
The ''CFCSA'' codifies child protection remedies available in B.C. It also gives specific rights to children in care under the Act (section 70). The [http://canlii.ca/t/84nt ''Representative for Children and Youth Act'', SBC 2006, c 29] s 6 provides that it is the responsibility of the Representative to:  


Race and aboriginal heritage are relevant considerations, but neither is determinative of custody alone. The importance of race differs in  adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to his or her race or culture ([http://canlii.ca/t/51z8 ''Van de Perre v Edwards'', 2001  SCC  60]). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests ([http://canlii.ca/t/1f50z ''H (D) v M (H)'', [1997<nowiki>]</nowiki> BCJ No 2144 (QL) (SC)]).
*support, assist, inform and advise children and their families respecting designated services;
*monitor, review, audit and conduct research on the provision of a designated service by a public body or director for the purpose of making recommendations to improve the effectiveness and responsiveness of that service, and comment publicly on any of these functions
*review, investigate and report on the critical injuries and deaths of children as set out in Part 4


Clients may wish to vary a custody order. The threshold for a variation of a custody or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents ([http://canlii.ca/t/1fr99 ''Gordon v Goertz'', [1996<nowiki>]</nowiki> 2 SCR 27]).
The guiding principles in section 2 of the ''CFCSA'' provide that:


Section 211 of the ''FLA'' allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over custody is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an ''FLA'' Section 211 report ([http://canlii.ca/t/4xfd ''Gupta v Gupta'', 2001 BCSC 649]).
*children are entitled to be protected from abuse, neglect, harm, or threat of harm;
*the family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;
*if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;
*the child’s views should be considered when decisions relating to that child are made;
*kinship ties to extended family should be maintained;
*the cultural identity of Aboriginal children should be preserved; and  
*decisions relating to children should be made and implemented in a timely manner.  


=== 2. Types of Custody Orders ===
''B.C. Children and Youth Review: An Independent Review of B.C.'s Child Protection System'' (April 7, 2006) recommends a number of changes to the sections discussed in this chapter, including the appointment of a Representative for Children and Youth. The full report can be viewed online at www.cecw-cepb.ca/publications/946.


:'''NOTE:''' “Custody” is a term that only appears in the ''DA'' and so only applies to claims that are proceeding in Supreme Court under the ''DA''. As of March 1, 2021, “custody” will be replaced with “parenting order” under the ''DA''.
=== 2. Best Interests of the Child ===


==== a) Interim Orders ====
Section 4 of the ''CFCSA'' defines “best interests of the child” somewhat differently than does the ''FLA''. Factors that must be considered under the ''CFCSA'' include:


An interim order is a temporary order made once the proceedings have commenced but before the final order is pronounced. Courts will usually make interim custody orders while an action in divorce is underway, with an eye to the child’s immediate best interests. Courts tend to favour stability, so an interim order is likely to favour the party with custody at the time of the marriage breakdown. This presumption toward stability can give an interim order substantial weight in determining a final custody order.
*the child’s safety;
*the child’s physical and emotional needs and level of development;
*continuity in child care;
*the quality of relationships with parents;
*the child’s cultural, racial, linguistic and religious heritage;
*the child’s views; and
*the effect on the child of any delays in making a decision.  


==== b) Sole Custody ====
Section 4(2) mandates that, in assessing the best interests of Aboriginal children, the importance of preserving the child’s cultural identity must be considered.


Sole custody, in which one parent provides the primary residence and is mostly responsible for day-to-day care, can be granted in cases where the parents request such an arrangement, where they live far apart, or where relations between the parties are so poor as to preclude cooperation.  
The ''CFCSA'' definition of when a child needs protection includes the following (s 13):
*situations where there is a risk of physical or sexual abuse, harm, or exploitation;
*emotional harm by a parent’s conduct;
*deprivation of necessary health care;
*situations where the parent is unable or unwilling to care for the child and has not made adequate provision for the child’s care; and
*where the child has been abandoned and adequate provision has not been made for the child’s care.  


:'''NOTE:''' The concept of “full custody” does not exist.  A parent using this term is most likely referring to sole custody.
See s 13 for a complete enumeration of circumstances where children need protection.  


==== c) Joint Custody ====
=== 3. Duty to Report Need for Protection ===


In joint custody, both parents have custody of the child. While the child may reside primarily with one parent, the parents cooperate in raising the child, acting as both joint custodians and guardians of the child. In British Columbia, there is a presumption toward joint custody.
The ''CFCSA'' s 14(1) requires that someone who believes a child is being or is likely to be physically harmed, sexually abused, or exploited to report the matter to the [http://www2.gov.bc.ca/gov/content/governments/organizational-structure/ministries-organizations/ministries/children-and-family-development Ministry of Children and Family Development]. The [http://www2.gov.bc.ca/gov/content/safety/public-safety/protecting-children/reporting-child-abuse Helpline for Children] (310-1234) provides 24-hour access to social workers in case of an emergency.  


==== d) Shared Custody ====
Reports to the Ministry are anonymous. No action lies against a person making a report unless it is made maliciously or without reasonable grounds. Failure to report cases of abuse or exploitation constitutes an offence (s 14(3)), even when the information was confidential or privileged, except for when the information was obtained through a solicitor-client relationship (s 14(2)). The Director under the ''CFCSA'' must assess the information reported (s 16). Case law has demonstrated that the duty of the director to act is actually broader than the legislated duty: see [http://canlii.ca/t/1dz13 ''BS v British Columbia'' (Director of Children, Family, and Community Services), [1998<nowiki>]</nowiki> 8 WWR 1 (BCCA)].


“Shared custody” is a term used by the ''Federal Child Support Guidelines'', but not by either the ''DA'' or the ''FLA''. Shared custody is a form of joint custody in which the child spends an almost equal time with each parent.  Typically, the child would be switching homes on a frequent basis, such as every few days or once a week.  This usually requires that the parents live near one another and have good communication skill.  It also requires that the child is able to adapt to living in two homes.  Any agreement for shared custody will affect child support.
== 4. Removal ==


==== e) Split Custody ====
Under the ''Child, Family and Community Service Act'' [''CFCSA''], the Ministry for Children and Families has different options to deal with an unattended child (s 25), or a lost or runaway child (s 26). Pursuant to these sections, the Ministry can take the child for up to 72 hours without formally removing the child from their parents. Furthermore, the Ministry can take a child away to provide essential health care without legally removing the child, provided that the Ministry first obtains a court order under s 29 of the ''CFCSA''. In situations where there are reasonable grounds to believe that the child’s health or safety are in immediate danger, a police officer may take charge of the child (s 27).


“Split custody” is a term used by the ''Federal Child Support Guidelines'', and not by either the ''DA'' or the ''FLA''. On rare occasions, courts will order siblings to live with separate parents. This is usually a drastic solution, ordered only after an ''FLA'' section 211 report (a court-ordered report respecting the needs of a child, the views of a child, and the ability and willingness of one of the parents to satisfy the needs of a child) is submitted to the Court. A split custody order will affect child support.
=== 5. Removal Procedure ===


=== 3. Other Custody Issues ===
Under the ''CFCSA'', Directors are appointed to enforce the Act. A Director may, without a court order, remove a child if there are reasonable grounds to believe that the child needs protection and that the child’s health or safety is in immediate danger, or no other less disruptive measure that is available is adequate to protect the child (s 30). When removing a child, a Director must make all reasonable efforts to notify each parent of the child’s removal (s 31). Practically speaking, the Director delegates their duty to social workers who then carry out the removal procedure.  


==== a) Consent Orders ====
=== 6. Presentation Hearing ===


Where there is agreement on the terms of support or custody provisions, but no written agreement, a consent order may be made by the Court under s 219 of the ''FLA'' if the written consent of the party against whom the order is to be enforced has been obtained. The order can extend only to the terms consented to.
The Director must attend a presentation hearing within seven days of the removal (''CFCSA'', s 34) and present a written report that includes:
*the circumstances of the removal;
*information about less disruptive measures considered before removal; and
*an interim plan of care for the child, including, in the case of an Aboriginal child, the steps to be taken to preserve the child’s aboriginal identity (s 35).  


==== b) Enforcement of Custody Orders ====
A child who is removed under the ''CFCSA'' is put under the care of the Director until the Court makes an interim order about the child, the child is returned, or until the Court makes a custody or supervision order (s 32). A presentation hearing is a summary hearing and must be concluded as soon as possible (normally within 30 days) (s 33.3).


Where a custody order is in force, the Court may make an order prohibiting interference with a child. The Court may further order sureties  and/or documents from the person against whom the order is made, and require that person to report to the Court for a period of time (''FLA'', s 183).  
If the parents consent to the interim removal, an order will be made that the child remain in the custody of the Director pending a protection hearing (see below). If the parent(s) disagree with the removal, a presentation hearing will be scheduled as soon as possible (s 33.3) to determine where the child should live pending the full protection hearing. The presentation hearing may proceed by way of affidavits or viva voce evidence. At the conclusion of the presentation hearing, the child may stay in the custody of the Director, may be returned to their parent(s) or may be returned to their parent(s) under supervision(s 35(2)). It is important to note that the notice of the presentation hearing need not be formally served, and informal notice is adequate.


Under the ''FLA'', police officer enforcement clauses can only be granted when there has been a breach of an order (s 231).
=== 7. Protection Hearing ===


A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the ''FLA'', s 188 that carries a possibility of criminal proceedings ([http://canlii.ca/t/7vf2 ''Criminal Code'', RSC 1985, c C-46], ss 280-281). The ''Criminal Code'' makes it an offence for a non-custodial parent to abduct a child. Where a custody order is in effect, abduction amounts to contempt of Court.  
A protection hearing must start within 45 days after the conclusion of the presentation hearing (''CFCSA'', s 37(2)). The purpose of the protection hearing is to determine whether the child needs protection (s 40(1)). The Director must return the child to the parent(s) as soon as possible if it is determined that the child does not need protection (s 40(2)). A child can be returned and still be under  minimum  supervision of the Director, or returned without supervision. If the child is returned without supervision, the proceedings are at an end (s 37(1)).  


==== c) Parental Mobility (Under the FLA, this is referred to as Relocation which has separate considerations from that of Mobility under the DA) ====
=== 8. Orders ===


Relocation is defined and explained under Division 6 of the ''FLA''. It considers relocation of a child that can reasonably be expected to have a significant impact on the child’s relationship with his/her guardian(s) or other adults with which the child has a significant relationship (s 65). The guardian intending to relocate with the child must provide 60-day written notice to all other guardians and persons having contact with the child (s 66). The notice must include the date of the relocation, and the name of the proposed location. Exemptions to these requirements can be granted by the Court if they are satisfied that the notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child (s 66(2)).
Section 41 of the ''CFCSA'' outlines orders that can be made at a protection hearing:
*an order to return the child to the custody of the parents while being under the Director’s supervision for a period of up to six months;
*an order that the child be placed in the custody of a person other than the parent (e.g. a relative) with the consent of that other person and under the Director’s supervision for a specified period of time;
*an order that the child remain or be placed in the custody of the Director for a specified period of time; or  
*an order that the child be placed in the continuing (permanent) custody of the Director. Continuing (permanent) orders should be made under s 49.


The child’s other guardian(s) can object to the relocation within 30 days of receiving the notice. If an objection is made, the guardian requesting the relocation must satisfy the court that (s 69(4)(a)):  
The parents may consent to or oppose the order. If the parents oppose the order, a Rule 2 case conference is scheduled as soon as possible and a judge will attempt to resolve any issues in dispute (see [http://www.bclaws.ca/civix/document/id/roc/roc/533_95 ''Provincial Court (Child, Family and Community Service Act) Rules'', BC Reg 533/95] for a complete description). If the matter is not settled at the case conference, a date is scheduled to determine whether the child needs protection.
*(i) the proposed relocation is made in good faith, and  
*(ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life


When considering the good faith requirement, the Court must consider (s 69(6)):
The content of supervision orders is outlined in the ''CFCSA'', section 41.1. Terms and conditions that may be attached to a supervision order include:
*(a) the reasons for the proposed relocation;  
*services for the child’s parent(s);
*(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
*day-care or respite care;
*(c) whether notice was given under section 66 [notice of relocation];
*the Director’s right to visit the child; and
*(d) any restrictions on relocation contained in a written agreement or an order.  
*the Director’s duty to remove the child if the person with custody does not comply with the order.  


Issues of parental mobility may arise in conjunction with custody issues. That is, one parent may wish to relocate away from another parent with whom they share custody. In ''Gordon v Goertz'', [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the ''DA''. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views.  
Section 43 outlines the time limits for temporary custody orders and s 47 outlines the rights and responsibilities of a Director who has custody of a child either under an interim or temporary custody order. These rights and responsibilities include:
*consenting to health care for the child;
*making decisions about the child’s education and religious upbringing; and  
*exercising any other rights to carry out any other responsibilities as guardian of the child, except consent to adoption.  


[http://canlii.ca/t/1fmfc ''One v One'', 2000 BCSC 1584], also a ''DA'' case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests:
Temporary orders can be extended under section 44.  
# the parenting capabilities of and the child’s relationship with parents and their new partners;
# employment, security and prospects of the parents and, where appropriate, their partners;
# access to and support of extended family;
# the difficulty of exercising the proposed access and the quality of the proposed access if the move is allowed;
# the effect of the move on the child’s academic situation;
# the psychological and emotional well-being of the child;
# the disruption of the child’s existing social and community support and routine;
# the desirability of the proposed new family unit for the child;
# the relative parenting capabilities of either parent and the respective ability to discharge parenting responsibilities;
# the child’s relationship with both parents;
# the separation of siblings;
# the retraining or educational opportunities for the moving parent.


== E. Access ==
When a continuing custody order is made, the Director becomes the sole guardian of the person of the child and the natural parents’ legal rights to the child are extinguished. The Director may then consent to the child’s adoption. The Public Guardian becomes the sole guardian of the estate of the child. The order, however, does not affect the child’s rights with respect to inheritance or successionof property (s 50(1)). In certain cases, the Director can seek a last-chance order of up to six months (s 49(7)).  


"Access" is the term used under the ''DA''. As of March 1, 2021, the term “access” will be removed from the DA, and the term “contact order” will be used to describe arrangements for non-guardians. Under the ''FLA'', the terms are "parenting time" for guardians, or "contact" for non-guardians.  
Parents can apply to set aside both temporary and continuing (permanent) orders under s 54. Temporary custody orders may also be extended where a permanent transfer of custody is planned under s 54.01. For more information, see ''British Columbia (Director of Family and Child Services) v K(TL)'', [1996] BCJ No. 2554 (Prov Ct FD) (QL).


Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the ''FLA'' came into force (March 18, 2013), do not need special transition sections. Section 4 of the ''Interpretation Act'' provides a default rule that the Act will be used upon it becoming effective, so cases started under the ''FRA'' will be determined under the ''FLA''.  
=== 9. Access and Consent Orders ===


Unless a parent poses a risk to the safety or well-being of the child, they will usually be allowed access or visiting rights. Courts can make an order for access and may view a custodial parent who denies access as acting against the best interests of the child.  
Section 55 of the Child, ''Family and Community Service Act'' [''CFCSA''] allows parents, or other persons, to apply for an access order at the time of or after, an interim or temporary custody order is made. Section 56 provides for applications for access by parents or other persons after a continuing custody order is made. This entitles parents to apply for access visits during any apprehension, whether interim or permanent, if the Director opposes access.  


:'''NOTE:''' It is important to note that access is a distinct and separate issue from child support. '''Denial of access is not grounds to withhold support; nor is a failure to pay support grounds for withholding access.'''
Consent orders under the ''CFCSA'' may be an advisable option for parents. A consent order is outlined in s 60, which provides that the Court may make any custody or supervision order without a finding of fact that their child actually needed protection, and without an admission of any of the grounds alleged by the Director for removing the child (ss 60(4) and (5)). A consent order requires the written consent of:
*a) the Director;
*b) the child, if 12 years of age or older;
*c) each parent of the child; and
*d) any person with whom the Director may be placing the child in temporary custody.  


=== 1. Factors Considered in Making an Access Order ===
Children 12 years of age or older must be given notice of the hearings, report copies, etc.


The overriding principle remains the '''best interests of the child'''. The courts will not be bound by the wishes of the child, although the child’s views can be a powerful factor. When the '''FLA''' came into force, it introduced an overarching consideration “'''to ensure the greatest possible protection of the child’s physical, psychological, and emotional safety.'''” It can be argued that this consideration is functionally in place already, however. The courts will look into several factors in making access orders. These include:
=== 10. Rights of Children in Care of the Director ===
*The age of the child: older children will be allowed longer visits, but courts will also consider the wishes of children over 12 who may not wish to see the non-custodial parent;
*Distance between homes: if the distances are great, courts may order longer stays;
*Conduct of the non-custodial parent: access can be denied for reasons such as alcoholism, abuse, past attempts to abduct the child, or attempts to alienate the child from the custodial parent;
*Health of the non-custodial parent: if health problems limit the non-custodial parent’s ability to care for the child, access may be limited;


=== 2. Types of Access Orders ===
Section 70 of the ''Child, Family and Community Service Act'' [''CFCSA''] sets out the rights to which children are entitled while in care of the Director. Children in care have the right to be fed, clothed, and nurtured according to community standards; be informed about plans regarding their care; be consulted with respect to decisions affecting them; reasonable privacy and possession of their personal belongings; be free from corporal punishment; and receive medical and dental care when required. For a complete list of enumerated rights, see s 70.


==== a) Interim Orders ====
=== 11. Priority in Placing Children with a Relative ===


After making an interim custody order, a court will often grant access on an interim basis. Usually, such an order will favour the status quo, in order to minimize disruption for the child.
When deciding where to place a child, the Director must consider the child’s best interests (s 71(1)). The Director must give priority to placing the child with a relative before considering a foster parent, unless that is inconsistent with the child’s best interests (s 71(2)).  


==== b) Specified and Unspecified Access ====
Children under protection can be placed in the custody of extended family or other concerned parties (s 8). This is known as a “kith and kin” agreement. The Director may also refer the matter to a familyconference co-ordinator to allow the family to reach an agreement on a ‘plan of care’ that serves the best interests of the child (ss 20, 21).


Specified orders set out the times and places at which the non-custodial parent must have access to the child. Specified orders are generally preferred. Unspecified access is less common and is ordered when the parents are willing to accommodate one another.  
Until March 31, 2010 a relative caring for a child residing in their home may have been eligibleto receive monthly Child in the Home of a Relative (“CIHR”) benefits from the Ministry of Social Development (previously the Ministry of Employment and Income Assistance). As of April 1, 2010, these benefits are no longer available to new applicants. In the absence of the CIHR benefits, relatives looking after a child in their home may be eligible for the child tax benefit, the B.C. family bonus, the universal child care benefit, and/or the child disability benefit. For more information, see: www.gov.bc.ca/meia/online_resource/verification_and_eligibility/cihr. An alternative (but not a substitute) for relatives to consider is the Extended Family Program benefits available through the Ministry of Children and Family Development (see www.mcf.gov.bc.ca/alternativestofostercare/extended_family.htm). These benefits are intended to be temporary and the relative is not eligible if they have a guardianship order. The application for benefits must be initiated by the child’s parent.


==== c) Conditional Access ====
=== 12. Priority in Placing Aboriginal Children with an Aboriginal Family ===


Courts may impose requirements, such as not smoking or using drugs or alcohol in the presence of the child. If the parent fails to meet the condition, access may be denied.  
The Director must give priority to placing an Aboriginal child with the child’s extended family within the child’s Aboriginal community or with another Aboriginal family (s 71(3)). Section 39(1) mandates notification of the band. See also ss 2(f), 3(b) and (c), and 4(2) of the ''CFCSA''. If a child is of mixed heritage, the Ministry will generally treat the child as an Aboriginal child and notify the band accordingly.  


==== d) Supervised Access ====
Certain additional considerations are provided throughout the Act for an Aboriginal, Nisga’a or treaty First Nations child.


Courts may order visits to be supervised by a designated third party if there are concerns about abuse, abduction, mental and physical handicaps or attempts to alienate the child from the custodial parent. It is up to the custodial parent to demonstrate that access should be supervised.
== E. Child Leaving Home or Parent Giving Up Custody of a Child ==


:'''NOTE:''' There are no filing fees nor does a person need legal representation in Provincial Court, making it a more accessible option for many clients.
Children may leave home before the age of majority, or alternatively, parents may voluntary give up legal custody of their children. Please note that “emancipation” (a legal mechanism by which a person may be legally separated from their parents before the age of majority) is not a legal remedy for children in BC as it is in some parts of the United States.


=== 3. Extra-provincial Custody and Access Orders ===
=== 1. Rights of the Child ===


Under the ''FLA'', the Court may exercise its jurisdiction to make custody and access orders if one of the following conditions is met:
Children may leave home as soon as they are able to support themselves. The following considerations should be kept in mind:  
#the child was “habitually resident” in BC (s 74(2)(a)). 
#If the child is not habitually resident in B.C., the Court must at the commencement of the application order be satisfied that (s 74(2)(b)):
#*i. the child is physically present in British Columbia when the application is filed,
#*ii. substantial evidence concerning the best interests of the child is available in British Columbia,
#*iii. no application for an extraprovincial order is pending before an extraprovincial tribunal in a place where the child is habitually resident,
#*iv. no extraprovincial order has been recognized by a court in British Columbia,
#*v. the child has a real and substantial connection with British Columbia, and
#*vi. on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia; 
#the child is physically present in British Columbia and the court is satisfied that the child would suffer serious harm if the child were to (s 74(2)(c))
#*i. remain with, or be returned to, the child's guardian, or
#*ii. be removed from British Columbia.


B.C. courts are required to enforce extra-provincial orders (s 75) with certain exceptions (s 76). Such exceptions include situations where the child would suffer serious harm if they were returned to the guardian or leaving British Columbia (s 76(1)(a)).   
*a) under the ''School Act'', a child must attend school until age 16 (s 3(1)(b)). It would be extremely difficult for the child to go to school and maintain a job to support themselves sufficiently at a younger age than this;
*b) a child under 15 needs written permission from their parent or guardian prior to working ([http://www.bclaws.ca/Recon/document/ID/freeside/00_96113_01 ''Employment Standards Act'', RSBC 1996, c 113], s 9(1)). Additionally, a child under 12 needs the written permission of the Director of Employment Standards prior to working (s 9(2)); 
*c) pursuant to s 26(1) of the ''Child, Family and Community Service Act'' [''CFCSA''], a Director may take charge of a child for a period of up to 72 hours if it appears that the child is lost or has run away. If the person responsible for the child is not located by the end of the 72-hour period, the Director no longer has charge of the child (s 26(5)). (Note that “child” is defined in the ''CFCSA'' as a person under the age of 19 years, and includes a youth.); and
*d) a child under 19 may qualify for social assistance if they do not live with a parent or guardian, and if the ministry is convinced that no parental support is being provided.   


If one spouse is not in B.C., the only B.C. Court that the B.C. residing spouse can proceed in is the B.C. Supreme Court, because the Provincial Court has no jurisdiction outside of the province.
=== 2. Giving Up Custody of a Child ===


== F. Guardianship ==
There are two basic ways that a parent can voluntarily give up legal custody of a child. This is done by transferring the rights that the parent possessed through one of the following mechanisms:
*a) by the parent(s) consenting to the adoption of the child by other persons (''Adoption Act'', RSBC 1996, c 5, s 13(1)); or
*b) by a written agreement between the parent and the Director of Child, Family and Community Service where the parent transfers their rights to the Director (s 23).  


Guardianship may be the most important aspect of any legal arrangements concerning the care and control of the children. Guardianship encompasses the whole bundle of rights and obligations involved in parenting a child, including making decisions about the child’s school, moral instruction, religion, health care, dental care, extracurricular activities, etc.  
== F. Child Benefits ==


When they are still together, both parents are presumed to be guardians, pursuant to a statutory presumption set out in section 39 of the FLA, playing a “full and active role” in the upbringing of the child (see ''e.g.'' [http://canlii.ca/t/23r7t ''Charlton v Charlton'']).  Upon marital breakdown, this can change either by agreement or by order of the Court. 
=== 1. Child Disability Benefit ===


Under the ''FLA'', guardianship is primarily governed by sections 39, 41, and 42.
The Child Disability Benefit (CDB) is a non-taxable supplement to the Canada Child Tax Benefit (CCTB) and Children’s Special Allowance. To receive the CDB, a child must be eligible to receive the CCTB and must also qualify for the Disability Tax Credit (DTC). Not all children with disabilities qualify. For more information about eligibility visit the [http://www.cra-arc.gc.ca/bnfts/dsblty-eng.html Canada Revenue Agency website] or call 1-800-387-1193.  


Parents can also appoint a guardian in a will. If the parents are both dead or have abandoned the child, the Public Guardian and Trustee becomes the child’s guardian.  
The CDB provides up to $2,730 per year, per child who qualifies for the disability amount, for low- and modest-income families caring for children under the age of 18 who have a severe and prolonged mental or physical impairment.


While a child’s parents are living together and after the child’s parents separate, each parent of the child is presumed to be the child’s guardian (s 39).  However, an agreement may be made to provide that a parent is not the child’s guardian after the parents separate or when the parents are about to separate.
=== 2. Canada Child Benefit ===


Section 39 of the FLA also provides for three other scenarios under which a parent is presumed to be a guardian. A parent who has never resided with a child is not the child’s guardian unless:
In July 2016, the Government replaced the Universal Childcare Benefit (UCCB) and the Canadian Child Tax Benefit (CCTB) with the Canada Child Benefit (CCB), a benefit paid monthly to help eligible families provide child care for their children under 18 years of age. The CCB provides families up to $6,400 annually for a child less than 6 years of age, and up to $5,400 annually for a child aged 6 to 17. The CCB benefit is reduced based on the family’s income and the number of children. When the family’s income exceeds $30,000 or there is more than one child in a family whose income exceeds $30,000, the CCB starts being reduced, and, eventually, the CCB benefit reaches $0. The CCB benefit is tax free. One must apply for CCB through Canada Revenue Agency.  
* 1) there is an agreement made under section 30 of the FLA,  
* 2) the parent and all of the child’s guardians make an agreement providing that the parent is also a guardian, or
* 3) the parent regularly cares for the child.


Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship. 
For more information on eligibility, the application process, the calculation of the amount of the benefit based on number of children and household income, and access to an online application, visit the Canada Revenue Agency website at: http://www.cra-arc.gc.ca/bnfts/ccb/menu-eng.html or call 1-800-387-1193.  
 
A person who is not a parent or a parent who is not a guardian may become a guardian of the child by court order, pursuant to section 50 of the FLA. The person applying to court for a guardianship order must demonstrate why it would be in the best interests of the child and provide notice to all of the child’s guardians and adults with whom the child resides (s. 51). If the child is over 12, the child’s written consent is also required. The evidentiary requirements to obtain such an order are set out under the Supreme Court Family Rules Rule 15-2.1 and the Provincial Court (Family) Rules Rule 18.1. The applicant must provide:
 
* 1. An affidavit setting out the following information:
**a. the nature and length of the applicant’s relationship with the child,
**b. the child's living arrangements,
**c. a detailed plan for how the applicant going to care for the child,
**d. information about any other children in the applicant’s care,
**e. information about any incidents of family violence that may affect the child, and
**f. information about any family or child protection court proceedings the applicant has been involved in;
*2. A Ministry of Children and Family Development records check;
*3. A Protection Order Registry records check; and
*4. A criminal record check.
 
Effective May 2021, the repealed Provincial Court (Family) Rules will be replaced by the new Provincial Court Family Rules. The Guardianship Affidavit (Form 5) is included in the new Rules and requires identical information to what is stated above (see Rules 26, 51, and 172).
 
If an application is made for guardianship of a treaty First Nation’s child, the child’s First Nation’s government must be served notice of the application and has standing in the proceeding (ss. 208 and 209).
 
At the time of birth, the two parents of a child are presumed to be their biological parents unless the child was born as a result of assisted reproduction (section 26, ''FLA''). Assisted reproduction has, at present, always included the use of one or more of donated eggs, donated sperm, and the cooperation of a woman who is willing to carry the baby to term. Section 24 of the FLA clarifies that a donor of eggs or sperm is not the parent of a child on the basis of their biological contribution alone – donors cannot be made to pay child support unless there is some other connection to the child which justifies holding that the person is a parent under the FLA. If a donor wishes to be regarded as a parent, written agreements can be drafted and signed before the child’s birth which would substantiate their parental claim under the FLA. Unlike donors, surrogates are presumed to be a parent of the child under the ''FLA'' since they are the birth parent. However, this presumption can be overcome by the intended parents and the surrogate mother signing a written agreement before the child is conceived which states that the surrogate mother will not be a parent to that child. Without such an agreement, the surrogate and sperm-providing parent would be the presumed parents.
 
Section 41 of the ''FLA'' lists out the parental responsibilities with respect to a child:
*(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 toreceive;
*(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.
 
Section 42 of the ''FLA'' defines parenting time as time that a child is with a guardian. During this parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.
 
Additionally, Division 6 of Part 4 of the new ''FLA'' states that if you are a child’s guardian and you want to relocate with the child, you must give any other person who can contact the child 60 days’ notice which includes both the date of the relocation and the name of the proposed location. The Court may not grant an exemption to give notice if it is satisfied that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child. Once notice is given, a child’s guardians and persons having contact with the child must use their best efforts to resolve any issues relating to the proposed relocation. The proposed relocation may occur unless another guardian of the child files an application to prohibit the relocation within 30 days of receiving notice. The Court will make its decision based on s 37 of the ''FLA'' considering what would be in the best interests of the child.
 
=== 1. Terminating Guardianship ===
 
Sole guardianship and joint guardianship are not terms used in the ''FLA''.  The parents or a court may decide that one parent should be the only guardian of the child.  This terminates the presumption of guardianship for the other parent.  The parents may terminate one parent’s guardianship via written agreement (s. 39). The court can terminate one parent’s guardianship pursuant to section 51 of the ''FLA''.  This is an extreme step, taken only when one parent has been shown to be either uninterested in or incapable of proper parenting. 
 
=== 2. Both Parents are Guardians ===
 
Under the ''FLA'', the standard guardianship agreement, wherein both parents are or remain guardians, is structured such that parental responsibilities and parenting time are specified in the agreement, with specific provisions which govern the allocation of parenting responsibilities. If no such provisions are included, then each party may exercise all parental responsibilities in consultation with the other guardians (''FLA'' section 40(2)).
 
The following are standard elements typically included in guardianship agreements:
*a) Both parents equally have all of the parental responsibilities of guardians [with any exceptions listed].
*b) A guardian, after becoming aware of important information relating to the child not known to the other guardian(s), must immediately notify the other guardian(s) about that information.
*c) Subject to other clauses in the agreement, both guardians must consult about any important decisions that must be made and try to reach agreement concerning these important decisions.
* d) During parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child provided that the guardian must advise the other parent of any matters of a significant nature affecting the child.
*e) Optionally, the agreement may specify that if one guardian dies, the remaining guardian will assume all parenting responsibilities.
 
Also, agreements will typically include a dispute resolution clause which governs the situation where the guardians cannot reach agreement over one of their shared responsibilities. The options include:
*a) one parent has the final word, however the other party can apply to court if they disagree with the deciding parent. In particularly high-conflict cases, giving one parent decision-making authority may be the only solution ([http://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc2409/2015bcsc2409.html?autocompleteStr=BCSC%202409&autocompletePos=1 ''Friedlander v Claman'', 2015 BCSC 2409]);
*b) the parties go to mediation, wherein the mediator will have the final word if the parties cannot agree;
*c) the parties go to a parenting coordinator who has decision-making authority;
*d) other collaborative law processes; or
*e) the parties can resolve the matter in court.
 
== G. Parenting Responsibilities and Parenting Time ==
 
=== 1. Family Law Act ===
 
According to section 42 of the FLA, parenting time refers to the amount of time that a child spends under the care of a guardian, as determined by an order or agreement. When the child is under their care, guardians assume responsibility for day-to-day care and decision-making for the child (please see section 41 of the FLA for a range of parenting responsibilities). Parenting time and responsibilities may not be allocated equally amongst guardians, and guardians may or may not be required to consult with one another depending on the terms of the order or agreement.
 
Decisions as to parenting time and responsibilities are determined according to the best interests of the child only. Section 40 of the FLA notes that the equal division of parenting time and parenting responsibilities is not presumed to be in the best interests of the child, nor should it be presumed that it is inherently better to make decisions separately or jointly. Guardians should not expect that they are entitled to equal sharing of parenting time or parenting responsibility. The best interests of the child are determined by weighing the following non-exhaustive list of considerations set out in section 37(2) of the FLA:
 
*(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.
 
A person’s conduct is considered only where their conduct stands to impact any of the above considerations regarding the best interests of the child.
 
=== 2. Divorce Act ===
 
Under the current DA, the term “custody” is used to refer to matters concerning the care, upbringing, and other relevant details pertaining to a child (s 2); custody is designated by what is referred to as an order for custody under the current DA. The provisions of section 16 of the DA give a brief overview of how an order for custody is decided and issued, including who may apply for an order, who may issue an order, and several of the court’s considerations when issuing such orders.
 
As of March 1, 2021, updates to the DA mean that the term “custody” will be replaced by “parenting time” and “parenting responsibilities” to emphasize the importance of the needs of the child rather than on the child as a possession of a parent. Similarly, “order for custody” will be replaced by “parenting order.” Section 16(1) through 16(10) will be repealed and replaced with a new section entitled “Best Interests of the Child”. This section will include more expansive provisions which focus on determining parenting time and responsibilities based on the best interests of the child. The new section 16(3) will provide guidance as to the factors to be considered, 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.
 
The updated DA will also set out the required contents of a parenting order (16.1(4)). A parenting order will allocate parenting time—and, correspondingly day-to-day decision-making responsibilities—and may include a schedule and permitted means of communication between a child and a person with parenting responsibilities. Parenting orders submitted by the parties must be mutually agreed to when submitted, though a court may modify according to the best interests of the child.




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Revision as of 02:47, 29 December 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on September 29, 2020.
LSLAP Manual
LSLAP Manual
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LSLAP Manual
Introduction
Chapters
3. Family Law
 · I. Introduction

 · II. Governing Legislation and Resources
 · III. Marriage
 · IV. Divorce
 · V. Uncontested Divorce
 · VI. Simple Divorce Procedure
 · VII. Alternatives to Divorce
 · VIII. Family Violence
 · IX. Assets
 · X. Spousal and Child Support
 · XI. Parenting Orders/Guardianship/Contact
 · XII. Children and the Law
 · XIII. Adoption
 · XIV. Name Changes
 · XV. Court Procedures

 · Appendix A: Glossary
v • d • e



A. Relevant Ages

1. Age of Majority

The Age of Majority Act, RSBC 1996, c 7, s 1 provides that the age of majority in B.C. is 19 years. Section 1 also applies to private documents, such as wills. A person’s age is determined by the provisions set forth in s 25(8) of the Interpretation Act, RSBC 1996, c 238.

2. Other Relevant Ages

a) Sexual Consent

As of 1890, the age of consent for sexual activity was set at 14 years. Recently, the age of consent in Canada has been changed from 14 to 16 years (Tackling Violent Crime Act, Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts, 39th Parliament, 2nd Session, October 2007, effective May 1st, 2008). However, if the sexual activity involves exploitative activity, such as prostitution, pornography or where there is a relationship of trust, authority or dependency, the age of consent is 18 years.

Section 150.1(3) of the Criminal Code provides what is often referred to as a “close in age” or “peer group” exception: a 12 or 13 year old can consent to engage in sexual activity with another person who is less than two years older and with whom there is no relationship of trust, authority or dependency. A 14 or 15 year old can consent to engage in sexual activity with a partner who is less than five years older with whom there is no relationship of trust, authority or dependency. An exception is also available for pre-existing marriages and equivalent relationships.

b) Marriage

Both parties to the marriage must be at least 19 years old. However, the Marriage Act, RSBC 1996, c 282, provides that individuals between the ages of 16 and 19 may marry without the consent of anyone if they are a widower or widow (s 28(1)), and that other persons between the ages of 16 and 19 may marry if they have the consent of:

    • a) both parents or of the parent having sole guardianship, or the surviving parent (s 28(1)(a);
    • b) a lawfully appointed guardian of that person (s 28(1)(b));
    • c) the Public Guardian or the Supreme Court if both parents are dead and there is no lawfully appointed guardian (s 28(1)(c)); or
    • d) a judge of the Supreme Court (where the person whose consent is required cannot be located, or where their consent is unreasonably withheld) (s 28(2)).

No person under the age of 16 can marry unless the marriage is shown to a Supreme Court judge to be expedient and in the interest of the parties (s 29). If the parent or guardian “unreasonably or from undue motives refuses or withholds consent to the marriage,” a minor may apply to court for a declaration to allow the marriage (s 28(2)).

Section 28(6) provides that a marriage of a minor must not be solemnized, and a license must not be issued, unless a birth certificate or other satisfactory proof of age has been produced to the issuer of marriage licenses or to the religious representative.

However, s 30 provides that failure to comply with ss 28 or 29 will not invalidate a marriage that has taken place. In other words, if someone manages to get married at 15 and obtains a valid marriage license, the marriage is valid.

B. Child Abduction

1. Criminal Code

Sections 280 to 285 of the Criminal Code deal with the offences of abduction. Section 282(1)provides that:

Everyone who, being the parent, guardian or person having the lawful care or charge of a person under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that person in contravention to the custody provisions of a custody order in relation to that person made by a court anywhere in Canada with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person of the possession of that person is guilty of an indictable offence (maximum 10 years imprisonment)... or an offence punishable on summary conviction.

Section 283 creates a similar offence for circumstances in which there is no custody order.

NOTE: One should be especially careful when giving advice in custody disputes to avoid inadvertently giving advice that may lead to the commission of these offences. If there is evidence that a parent may abduct a child, or if there is evidence that visits are very “disturbing and harmful”, access may be denied. See Re Sharp (1962), 36 DLR (2d) 328 (BCCA).

2. Child Abduction Convention

The Hague Convention on the Civil Aspects of International Child Abduction enables a person whose custody rights have been violated to apply to a “Central Authority” (each party to the convention must create such a body) for the voluntary return of the child, or to apply for a court order. Keep in mind that not every country is a signatory to the Hague Convention. Applications can be made either in the person’s jurisdiction or in the jurisdiction to which the child has been abducted.

Each Central Authority has several tasks:

  • i) to discover the whereabouts of the child;
  • ii) to take precautions to prevent harm to the child;
  • iii) to encourage voluntary return of the child or some other agreeable arrangement;
  • iv) to facilitate administrative processes; and
  • v) to arrange for legal advice where necessary.

It appears that the Convention applies where the parents are formally separated and the child has been in the sole custody of one parent.

Finally, it should be noted that the Central Authority does not decide the merits of any custody order. It is merely an enforcement agency.

A federal coordinator of the Department of Justice deals with abductions to France, Switzerland, Portugal and Canada. The contact number is (613) 995-6426.

If the child has been taken to another jurisdiction, contact the Department of External Affairs, 125 Sussex Drive Ottawa, K1A 0G2. Attention: J.L.A. The contact number is (613) 995-8807.

A further resource in the case of abductions and violations of custody orders is the office of the Child Youth and Family Advocate, 600-595 Howe Street, Vancouver, BC. The contact number is (604) 775-3203.

C. Discipline

The Criminal Code (s 43) allows a parent, a person standing in the place of a parent, or a school teacher to discipline a child, by way of correction, provided that only reasonable force is used. However, section 76(3) of the School Act, RSBC 1996, c 412 requires that teachers ensure the discipline is similar to that of a kind, firm, and judicious parent, and must not include the use of corporal punishment.

The Supreme Court of Canada examined s 43 in Canadian Foundation for Children, Youth and the Law v. Canada, [2004] SCC 4, 16 C.R. (6th) 203. The Court held that section 43 does not violate the constitutional rights of children. The discipline must be “by way of correction” meaning “only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of [their] behaviour” (para 24). Furthermore, the Court provided a comprehensive definition of “reasonable force”:

Generally, section 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver's frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered.

D. Child Protection

Under the Child, Family and Community Service Act [CFCSA], a Director or member of the municipal or provincial police forces can apprehend any child under the age of 19 years when the child is believed to be in need of protection or care. Section 6 lists conditions justifying temporary protective custody under this Act.

Within seven days after the child’s removal, a Director must attend Supreme or Provincial Court for a presentation hearing. The Director must, if possible, inform the child, if 12 years of age or over, andeach parent of the time, date, and place of the hearing. If the situation warrants it, a hearing may result in temporary (or permanent) custody of the child being given to the Director or some other agency.

1. Principles

The CFCSA codifies child protection remedies available in B.C. It also gives specific rights to children in care under the Act (section 70). The Representative for Children and Youth Act, SBC 2006, c 29 s 6 provides that it is the responsibility of the Representative to:

  • support, assist, inform and advise children and their families respecting designated services;
  • monitor, review, audit and conduct research on the provision of a designated service by a public body or director for the purpose of making recommendations to improve the effectiveness and responsiveness of that service, and comment publicly on any of these functions
  • review, investigate and report on the critical injuries and deaths of children as set out in Part 4

The guiding principles in section 2 of the CFCSA provide that:

  • children are entitled to be protected from abuse, neglect, harm, or threat of harm;
  • the family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;
  • if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;
  • the child’s views should be considered when decisions relating to that child are made;
  • kinship ties to extended family should be maintained;
  • the cultural identity of Aboriginal children should be preserved; and
  • decisions relating to children should be made and implemented in a timely manner.

B.C. Children and Youth Review: An Independent Review of B.C.'s Child Protection System (April 7, 2006) recommends a number of changes to the sections discussed in this chapter, including the appointment of a Representative for Children and Youth. The full report can be viewed online at www.cecw-cepb.ca/publications/946.

2. Best Interests of the Child

Section 4 of the CFCSA defines “best interests of the child” somewhat differently than does the FLA. Factors that must be considered under the CFCSA include:

  • the child’s safety;
  • the child’s physical and emotional needs and level of development;
  • continuity in child care;
  • the quality of relationships with parents;
  • the child’s cultural, racial, linguistic and religious heritage;
  • the child’s views; and
  • the effect on the child of any delays in making a decision.

Section 4(2) mandates that, in assessing the best interests of Aboriginal children, the importance of preserving the child’s cultural identity must be considered.

The CFCSA definition of when a child needs protection includes the following (s 13):

  • situations where there is a risk of physical or sexual abuse, harm, or exploitation;
  • emotional harm by a parent’s conduct;
  • deprivation of necessary health care;
  • situations where the parent is unable or unwilling to care for the child and has not made adequate provision for the child’s care; and
  • where the child has been abandoned and adequate provision has not been made for the child’s care.

See s 13 for a complete enumeration of circumstances where children need protection.

3. Duty to Report Need for Protection

The CFCSA s 14(1) requires that someone who believes a child is being or is likely to be physically harmed, sexually abused, or exploited to report the matter to the Ministry of Children and Family Development. The Helpline for Children (310-1234) provides 24-hour access to social workers in case of an emergency.

Reports to the Ministry are anonymous. No action lies against a person making a report unless it is made maliciously or without reasonable grounds. Failure to report cases of abuse or exploitation constitutes an offence (s 14(3)), even when the information was confidential or privileged, except for when the information was obtained through a solicitor-client relationship (s 14(2)). The Director under the CFCSA must assess the information reported (s 16). Case law has demonstrated that the duty of the director to act is actually broader than the legislated duty: see BS v British Columbia (Director of Children, Family, and Community Services), [1998] 8 WWR 1 (BCCA).

4. Removal

Under the Child, Family and Community Service Act [CFCSA], the Ministry for Children and Families has different options to deal with an unattended child (s 25), or a lost or runaway child (s 26). Pursuant to these sections, the Ministry can take the child for up to 72 hours without formally removing the child from their parents. Furthermore, the Ministry can take a child away to provide essential health care without legally removing the child, provided that the Ministry first obtains a court order under s 29 of the CFCSA. In situations where there are reasonable grounds to believe that the child’s health or safety are in immediate danger, a police officer may take charge of the child (s 27).

5. Removal Procedure

Under the CFCSA, Directors are appointed to enforce the Act. A Director may, without a court order, remove a child if there are reasonable grounds to believe that the child needs protection and that the child’s health or safety is in immediate danger, or no other less disruptive measure that is available is adequate to protect the child (s 30). When removing a child, a Director must make all reasonable efforts to notify each parent of the child’s removal (s 31). Practically speaking, the Director delegates their duty to social workers who then carry out the removal procedure.

6. Presentation Hearing

The Director must attend a presentation hearing within seven days of the removal (CFCSA, s 34) and present a written report that includes:

  • the circumstances of the removal;
  • information about less disruptive measures considered before removal; and
  • an interim plan of care for the child, including, in the case of an Aboriginal child, the steps to be taken to preserve the child’s aboriginal identity (s 35).

A child who is removed under the CFCSA is put under the care of the Director until the Court makes an interim order about the child, the child is returned, or until the Court makes a custody or supervision order (s 32). A presentation hearing is a summary hearing and must be concluded as soon as possible (normally within 30 days) (s 33.3).

If the parents consent to the interim removal, an order will be made that the child remain in the custody of the Director pending a protection hearing (see below). If the parent(s) disagree with the removal, a presentation hearing will be scheduled as soon as possible (s 33.3) to determine where the child should live pending the full protection hearing. The presentation hearing may proceed by way of affidavits or viva voce evidence. At the conclusion of the presentation hearing, the child may stay in the custody of the Director, may be returned to their parent(s) or may be returned to their parent(s) under supervision(s 35(2)). It is important to note that the notice of the presentation hearing need not be formally served, and informal notice is adequate.

7. Protection Hearing

A protection hearing must start within 45 days after the conclusion of the presentation hearing (CFCSA, s 37(2)). The purpose of the protection hearing is to determine whether the child needs protection (s 40(1)). The Director must return the child to the parent(s) as soon as possible if it is determined that the child does not need protection (s 40(2)). A child can be returned and still be under minimum supervision of the Director, or returned without supervision. If the child is returned without supervision, the proceedings are at an end (s 37(1)).

8. Orders

Section 41 of the CFCSA outlines orders that can be made at a protection hearing:

  • an order to return the child to the custody of the parents while being under the Director’s supervision for a period of up to six months;
  • an order that the child be placed in the custody of a person other than the parent (e.g. a relative) with the consent of that other person and under the Director’s supervision for a specified period of time;
  • an order that the child remain or be placed in the custody of the Director for a specified period of time; or
  • an order that the child be placed in the continuing (permanent) custody of the Director. Continuing (permanent) orders should be made under s 49.

The parents may consent to or oppose the order. If the parents oppose the order, a Rule 2 case conference is scheduled as soon as possible and a judge will attempt to resolve any issues in dispute (see Provincial Court (Child, Family and Community Service Act) Rules, BC Reg 533/95 for a complete description). If the matter is not settled at the case conference, a date is scheduled to determine whether the child needs protection.

The content of supervision orders is outlined in the CFCSA, section 41.1. Terms and conditions that may be attached to a supervision order include:

  • services for the child’s parent(s);
  • day-care or respite care;
  • the Director’s right to visit the child; and
  • the Director’s duty to remove the child if the person with custody does not comply with the order.

Section 43 outlines the time limits for temporary custody orders and s 47 outlines the rights and responsibilities of a Director who has custody of a child either under an interim or temporary custody order. These rights and responsibilities include:

  • consenting to health care for the child;
  • making decisions about the child’s education and religious upbringing; and
  • exercising any other rights to carry out any other responsibilities as guardian of the child, except consent to adoption.

Temporary orders can be extended under section 44.

When a continuing custody order is made, the Director becomes the sole guardian of the person of the child and the natural parents’ legal rights to the child are extinguished. The Director may then consent to the child’s adoption. The Public Guardian becomes the sole guardian of the estate of the child. The order, however, does not affect the child’s rights with respect to inheritance or successionof property (s 50(1)). In certain cases, the Director can seek a last-chance order of up to six months (s 49(7)).

Parents can apply to set aside both temporary and continuing (permanent) orders under s 54. Temporary custody orders may also be extended where a permanent transfer of custody is planned under s 54.01. For more information, see British Columbia (Director of Family and Child Services) v K(TL), [1996] BCJ No. 2554 (Prov Ct FD) (QL).

9. Access and Consent Orders

Section 55 of the Child, Family and Community Service Act [CFCSA] allows parents, or other persons, to apply for an access order at the time of or after, an interim or temporary custody order is made. Section 56 provides for applications for access by parents or other persons after a continuing custody order is made. This entitles parents to apply for access visits during any apprehension, whether interim or permanent, if the Director opposes access.

Consent orders under the CFCSA may be an advisable option for parents. A consent order is outlined in s 60, which provides that the Court may make any custody or supervision order without a finding of fact that their child actually needed protection, and without an admission of any of the grounds alleged by the Director for removing the child (ss 60(4) and (5)). A consent order requires the written consent of:

  • a) the Director;
  • b) the child, if 12 years of age or older;
  • c) each parent of the child; and
  • d) any person with whom the Director may be placing the child in temporary custody.

Children 12 years of age or older must be given notice of the hearings, report copies, etc.

10. Rights of Children in Care of the Director

Section 70 of the Child, Family and Community Service Act [CFCSA] sets out the rights to which children are entitled while in care of the Director. Children in care have the right to be fed, clothed, and nurtured according to community standards; be informed about plans regarding their care; be consulted with respect to decisions affecting them; reasonable privacy and possession of their personal belongings; be free from corporal punishment; and receive medical and dental care when required. For a complete list of enumerated rights, see s 70.

11. Priority in Placing Children with a Relative

When deciding where to place a child, the Director must consider the child’s best interests (s 71(1)). The Director must give priority to placing the child with a relative before considering a foster parent, unless that is inconsistent with the child’s best interests (s 71(2)).

Children under protection can be placed in the custody of extended family or other concerned parties (s 8). This is known as a “kith and kin” agreement. The Director may also refer the matter to a familyconference co-ordinator to allow the family to reach an agreement on a ‘plan of care’ that serves the best interests of the child (ss 20, 21).

Until March 31, 2010 a relative caring for a child residing in their home may have been eligibleto receive monthly Child in the Home of a Relative (“CIHR”) benefits from the Ministry of Social Development (previously the Ministry of Employment and Income Assistance). As of April 1, 2010, these benefits are no longer available to new applicants. In the absence of the CIHR benefits, relatives looking after a child in their home may be eligible for the child tax benefit, the B.C. family bonus, the universal child care benefit, and/or the child disability benefit. For more information, see: www.gov.bc.ca/meia/online_resource/verification_and_eligibility/cihr. An alternative (but not a substitute) for relatives to consider is the Extended Family Program benefits available through the Ministry of Children and Family Development (see www.mcf.gov.bc.ca/alternativestofostercare/extended_family.htm). These benefits are intended to be temporary and the relative is not eligible if they have a guardianship order. The application for benefits must be initiated by the child’s parent.

12. Priority in Placing Aboriginal Children with an Aboriginal Family

The Director must give priority to placing an Aboriginal child with the child’s extended family within the child’s Aboriginal community or with another Aboriginal family (s 71(3)). Section 39(1) mandates notification of the band. See also ss 2(f), 3(b) and (c), and 4(2) of the CFCSA. If a child is of mixed heritage, the Ministry will generally treat the child as an Aboriginal child and notify the band accordingly.

Certain additional considerations are provided throughout the Act for an Aboriginal, Nisga’a or treaty First Nations child.

E. Child Leaving Home or Parent Giving Up Custody of a Child

Children may leave home before the age of majority, or alternatively, parents may voluntary give up legal custody of their children. Please note that “emancipation” (a legal mechanism by which a person may be legally separated from their parents before the age of majority) is not a legal remedy for children in BC as it is in some parts of the United States.

1. Rights of the Child

Children may leave home as soon as they are able to support themselves. The following considerations should be kept in mind:

  • a) under the School Act, a child must attend school until age 16 (s 3(1)(b)). It would be extremely difficult for the child to go to school and maintain a job to support themselves sufficiently at a younger age than this;
  • b) a child under 15 needs written permission from their parent or guardian prior to working (Employment Standards Act, RSBC 1996, c 113, s 9(1)). Additionally, a child under 12 needs the written permission of the Director of Employment Standards prior to working (s 9(2));
  • c) pursuant to s 26(1) of the Child, Family and Community Service Act [CFCSA], a Director may take charge of a child for a period of up to 72 hours if it appears that the child is lost or has run away. If the person responsible for the child is not located by the end of the 72-hour period, the Director no longer has charge of the child (s 26(5)). (Note that “child” is defined in the CFCSA as a person under the age of 19 years, and includes a youth.); and
  • d) a child under 19 may qualify for social assistance if they do not live with a parent or guardian, and if the ministry is convinced that no parental support is being provided.

2. Giving Up Custody of a Child

There are two basic ways that a parent can voluntarily give up legal custody of a child. This is done by transferring the rights that the parent possessed through one of the following mechanisms:

  • a) by the parent(s) consenting to the adoption of the child by other persons (Adoption Act, RSBC 1996, c 5, s 13(1)); or
  • b) by a written agreement between the parent and the Director of Child, Family and Community Service where the parent transfers their rights to the Director (s 23).

F. Child Benefits

1. Child Disability Benefit

The Child Disability Benefit (CDB) is a non-taxable supplement to the Canada Child Tax Benefit (CCTB) and Children’s Special Allowance. To receive the CDB, a child must be eligible to receive the CCTB and must also qualify for the Disability Tax Credit (DTC). Not all children with disabilities qualify. For more information about eligibility visit the Canada Revenue Agency website or call 1-800-387-1193.

The CDB provides up to $2,730 per year, per child who qualifies for the disability amount, for low- and modest-income families caring for children under the age of 18 who have a severe and prolonged mental or physical impairment.

2. Canada Child Benefit

In July 2016, the Government replaced the Universal Childcare Benefit (UCCB) and the Canadian Child Tax Benefit (CCTB) with the Canada Child Benefit (CCB), a benefit paid monthly to help eligible families provide child care for their children under 18 years of age. The CCB provides families up to $6,400 annually for a child less than 6 years of age, and up to $5,400 annually for a child aged 6 to 17. The CCB benefit is reduced based on the family’s income and the number of children. When the family’s income exceeds $30,000 or there is more than one child in a family whose income exceeds $30,000, the CCB starts being reduced, and, eventually, the CCB benefit reaches $0. The CCB benefit is tax free. One must apply for CCB through Canada Revenue Agency.

For more information on eligibility, the application process, the calculation of the amount of the benefit based on number of children and household income, and access to an online application, visit the Canada Revenue Agency website at: http://www.cra-arc.gc.ca/bnfts/ccb/menu-eng.html or call 1-800-387-1193.


v • d • e
 
Chapters 1-7
Criminal Law  · Youth Justice  · Family Law  · Victims  · Public Complaints · Human Rights  · Workers Compensation
Chapter One:
Criminal Law
Chapter Two:
Youth Justice
Chapter Three:
Family Law
Chapter Four:
Victims
Chapter Five:
Public Complaints
Chapter Six:
Human Rights
Chapter Seven:
Workers' Compensation
I. Introduction · II. Governing Legislation, Policy & Guidelines · III. Introduction to Compensation Claims for Injured Workers · IV. LSLAP's Role at the Initial Decision Level · V. Limitation Periods and Timing of Decisions · VI. Making a Claim · VII. The Claim Acceptance Process · VIII. Worker Status · IX. Disability and Causation · X. Time Limits and Procedures · XI. Claim Benefits · XII. Appeals · XIII. Health and Safety Regulations in the Workplace · XIV. Assessments of Employers · XV. The WCB Fair Practices Officer · Appendix A: Abbreviations · Appendix B: List of Cases · Appendix C: Referrals · Appendix D: Resources · Appendix E: Claims Process · Appendix F: Checklist for Interviews · Appendix G: Checklist for Appeals · Appendix H: Sample Authorization Form
© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.


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