Basic Principles of Parenting after Separation

When parents, judges and arbitrators have to make plans about parenting after separation, they're usually making plans about two broad issues: firstly, the schedule of the time that the children will spend with their parents and other important people in their lives; and, secondly, how parents will make important decisions affecting the children, about things like healthcare, extracurricular activities, language instruction, and schooling.

There are two laws that talk about these two issues, the federal Divorce Act and the provincial Family Law Act. The Divorce Act only applies to people who are or who used to be married to each other, but the Family Law Act applies to everyone, including people who are or who used to be married to each other, and anyone who has had a child with someone. The good news is that the two laws talk about parenting after separation using fairly similar terms. In general, the time children have with their parents is called parenting time, and parents' responsibility for making decisions about their children is called decision-making responsibility or parental responsibilities. In general, the time people who aren't parents have with children is called contact.

This section takes a deeper look at parenting after separation under the Divorce Act and the Family Law Act than the discussion provided in the first section of this chapter. It talks about who the laws apply to and how people become children's guardians. It talks about how the court makes decisions about parenting after separation, and the different kinds of parenting arrangements that are available.

Introduction

Under the federal Divorce Act, the time children have with their parents is called "parenting time," and parents' responsibility for making decisions about their children is called "decision-making responsibility." Under the provincial Family Law Act, the time children have with their parents is called "parenting time" and parents' responsibility for making decisions about their children is called "parental responsibilities." However, parenting time under the Divorce Act means the same thing as parenting time under the Family Law Act, and while there are some differences in how the Divorce Act talks about decision-making responsibilities and how the Family Law Act talks about parental responsibilities, you can think of them as meaning the same thing.

Unfortunately, this is where the similarities end. The Divorce Act only applies to people who are or who used to be married to each other. Under the Divorce Act, the people who have parenting time and decision-making responsibility are spouses, and a "spouse" might be a parent or a step-parent. The people who have "contact" with children are people who aren't "spouses." People who aren't spouses may, in certain circumstances, ask for parenting time and decision-making responsibility.

On the other hand, the Family Law Act applies to everyone, including people who are or who used to be married to each other. Under the Family Law Act, the people who have parenting time and parental responsibilities are guardians. "Guardians" are usually, but not always, parents. (Stepparents, extended family members and other adults can also ask to be appointed as the guardians of a child.) The people who have "contact" with children are people who aren't "guardians," including parents who aren't guardians.

When the court is asked to make orders about how children are cared for after separation, it will firstly consider whether the person asking for the order is a "spouse," a "parent," a "guardian" or someone else. The answer to this question is about whether the person asking for the order fits within the categories of people allowed to apply for the order, or, as it's sometimes put, whether the person has the standing to apply for the order. The answer to this question changes depending on the legislation the person is relying on, either the Divorce Act or the Family Law Act.

The law about parenting after separation

Making plans for how children will be raised after the relationship between their parents has ended is about deciding how important decisions about their care and upbringing will be made, and deciding where the children will live and how much time they will have with the important people in their lives. While the parents of a child are usually the people responsible for making these decisions, when parents can't agree the decision may be made by a judge or by an arbitrator and the rules governing their decision will change depending on the legislation they are required to apply.

The Divorce Act

The Divorce Act only applies to people who are or used to be married to each other. In addition to divorce, the Divorce Act also talks about orders about decision-making responsibility, parenting time and contact with children, and about how those orders can be changed. If married or formerly married people are already involved in a court proceeding under the Divorce Act, other people can sometimes also ask for orders about children in the court proceeding between the spouses.

Only the Supreme Court can deal with claims under the Divorce Act.

Standing

If a claim for orders about parenting after separation is being made under the Divorce Act, the parties must be or have been married to each other, and the spouse asking for the orders must have lived in the province in which the court proceeding is started for at least one year before the proceeding started. Because what matters about claims under the Divorce Act is that the parties are or were married to each other, this means that one of the parties might be a stepparent or an adoptive parent to the child, and not necessarily a biological parent.

In a court proceeding under the Divorce Act, someone who is a spouse can ask for orders that they have "parenting time" with a child or "decision-making responsibility" for a child.

If a court proceeding under the Divorce Act has already started, under section 16.1(1)(b) of the act, certain other people can also ask for orders about parenting time and decision-making responsibility. These people must be:

• someone who is not a spouse but is a parent of the child,
• someone who is not a spouse but "stands in the place of a parent" to the child, or
• someone who is not a spouse but intends to stand in the place of a parent to the child.

These people could also ask for an order that they have "contact" with the child. In fact, as long as a court proceeding under the Divorce Act has started, anyone can ask for an order that they have contact with a child.

However, before anyone who isn't a spouse can ask for orders about children under the Divorce Act they must first get the court's permission, called leave, before they make their application. Section 16.1(2) says that people other than spouses must get leave before asking for orders about parenting time and decision-making responsibility; section 16.5(2) says that people other than spouses must get leave before asking for orders for contact with a child.

Limitation periods

Some kinds of claims must be made within a certain amount of time, called a limitation period, and cannot be made after the limitation period has passed. Under the provincial Family Law Act, for example, a spouse must make a claim for spousal support within two years of the date of their divorce or the date their marriage was annulled.

There's a limit to when claims under the Divorce Act for parenting time, decision-making responsibility and contact can be made as well. Under the Divorce Act, the only young people the court can make orders about are "children of the marriage." Section 2(1) of the act defines a child of the marriage as the child of one or both spouses as long as the child is:

• under the age of majority, or
• older but unable to withdraw from the care of their parents because of "illness, disability or other cause."

"Other cause" usually means that the child is still going to school, usually college or university.

Once a young person no longer qualifies as a "child of the marriage," the court cannot make orders for parenting time, decision-making responsibility and contact about that child.

Statutory provisions

These are the important sections of the Divorce Act which talk about parenting time and decision-making responsibility:

• section 2: definitions
• section 3: the court's authority to make orders for parenting time and decision-making responsibility when a spouse is asking for a divorce order
• section 4: the court's authority to make orders for parenting time and decision-making responsibility after the court has made a divorce order
• section 5: the court's authority to change orders for parenting time and decision-making responsibility after the court has made a divorce order
• section 6: transfer of court proceedings when the children normally live in another province
• section 6.3: the court's authority to make or change orders for parenting time and decision-making responsibility about children who normally live outside of Canada
• section 16: the court must make orders for parenting time and decision-making responsibility taking into account only the best interests of the child
• sections 16.1, 16.2 and 16.3: parenting time and decision-making responsibility
• section 16.4: someone with parenting time or decision-making responsibility may get information about the child
• section 16.6: including parenting plans in orders for parenting time or decision-making responsibility
• sections 16.9, 16.91 and 16.93: relocation
• section 17: changing orders for parenting time and decision-making responsibility

These are the important sections of the Divorce Act which talk about contact:

• section 2: definitions
• section 6.1: the court's authority to make orders for contact
• section 6.3: the court's authority to make or change orders for contact with children who normally live outside of Canada
• section 16: the court must make orders for contact taking into account only the best interests of the child
• sections 16.5: contact
• section 16.6: including parenting plans in orders for contact
• sections 16.9, 16.91, 16.93 and 16.96: relocation
• section 17: changing orders for contact

The Family Law Act

Although the Divorce Act only applies to people who are or were married to each other, the Family Law Act applies to everyone. The Family Law Act talks about orders about parental responsibilities, parenting time and contact with children, about how those orders can be changed, and about how those orders can be enforced.

Both the Provincial Court and the Supreme Court can deal with claims under the Family Law Act.

Standing

The people who can ask for orders about parental responsibilities and parenting time are guardians. Most of the time the parents of a child will be the child's guardians, but other people can be guardians too, including people who have a court order appointing them as guardians and people who are made guardians by a guardian's will. It's important to know that being a parent doesn't automatically mean that you are also a guardian.

If someone who is not a guardian wants to ask for orders about parental responsibilities or parenting time, they must first become a guardian of the child. Guardianship and becoming a guardian are discussed in more detail later in this section.

People who are not guardians can ask for orders about contact with a child.

Limitation periods

Under the Family Law Act, the court can only make orders for parental responsibilities, parenting time and contact about young people who qualify as children. Section 1 defines a "child" as "a person who is under 19 years of age." Although the act has broader definitions of "child" that can include children who are 19 and older, those broader definitions only apply to the parts of the legislation about parentage and child support.

Statutory provisions

These are the important sections of the Family Act which talk about guardianship, parenting time and parental responsibilities:

• section 1: definitions
• section 19.10: the obligation of arbitrators to make decisions about a child taking into account only the best interests of the child
• sections 23 to 33: parentage
• sections 37 and 38: the court must make orders for parenting time and parental responsibilities taking into account only the best interests of the child
• section 39: when parents are and are not guardians
• sections 40, 41, 43 and 49: parental responsibilities
• sections 40 and 42: parenting time
• section 44: guardians' ability to make agreements for parenting time and parental responsibilities
• section 45: the court's authority to make orders for parenting time and parental responsibilities
• section 47: the court's authority to change agreements and orders for parenting time and parental responsibilities
• section 50: agreements about guardianship
• sections 51 and 52: orders about guardianship
• sections 53, 54, 56 and 57: appointing a person as a guardian in a will
• section 55, 56 and 57: appointing a person as a standby guardian
• section 61, 62, 63 and 231: enforcing orders and agreements for parenting time
• sections 65 to 71: relocation
• sections 182 to 189: family violence
• section 202: the court's authority to decide how evidence from children is received
• section 203: children's lawyers
• section 208 and 209: guardianship of Nisga'a and treaty First Nation children
• section 211: parenting assessments

These are the important sections of the Family Act which talk about contact:

• section 1: definitions
• section 19.10: the obligation of arbitrators to make decisions about a child taking into account only the best interests of the child
• sections 37 and 38: the court must make orders for contact taking into account only the best interests of the child
• section 39: when parents are and are not guardians
• section 58: agreements about contact
• section 59: orders about contact
• section 60: the court's authority to change agreements and orders for contact
• section 61, 62, 63 and 231: enforcing orders and agreements for contact
• sections 65 to 71: relocation
• sections 182 to 189: family violence
• section 202: the court's authority to decide how evidence from children is received
• section 203: children's lawyers
• section 211: parenting assessments

Parenting time, contact and child support

A person's time with a child is entirely different and separate from any duty they might have to pay child support. Child support is not a fee paid to get parenting time or contact, nor is it a fee charged in return for allowing parenting time or contact. Child support is paid by one person to another to help the person receiving support, the recipient, cover the costs associated with raising the child and providing them with the most positive and most enriching childhood as possible. Parenting time or contact, on the other hand, is about a child's right to benefit from spending time with an adult, as long as that time is in the child's best interests.

However, there are two circumstances where the arrangements made for parenting time and contact can have an impact on how child support is calculated: when the parents share their children's time more or less equally; and, when each parent has the primary home of one or more of the children. You can read more about child support in the Child Support chapter.

Shared parenting time

Shared parenting time is a term used by the Child Support Guidelines to describe a kind of parenting situation in which the children spend an equal or almost equal amount of time with each parent. Where parents have shared parenting time, the children will usually spend a certain amount of time with one parent at that parent's home and a similar amount of time with the other parent at their home. Shared parenting time can require that the children switch homes every three or four days, every other week, every two weeks, or every month; the amount of time the children spend with each parent will depend on the circumstances of each case, the age of the children, the parents' work schedules, and the schedules of the children's activities.

For many people, child support is calculated using the tables attached to the Child Support Guidelines that say how much child support is payable according to the income of the person paying child support, the payor, and the number of children support is being paid for. However, once the payor has the children for 40 percent or more of their time, section 9 of the Guidelines says that the amount of support paid can be a different amount than what the Guidelines tables require. Almost all of the time, the amount paid is less, often a lot less, than what the table says should be paid, on the basis that because the payor has the children for so much of their time, the payor is spending more on the day-to-day needs of the children and the recipient is spending less.

Unfortunately, because a payor's time with the children is sometimes tied to the amount of their child support obligation, the court often hears payors saying "the only reason you don't want the kids to spend so much time with me is because you don't want me to pay less child support," or, on the other hand, recipients saying "the only reason you want the kids for so much time is because you want to pay less child support." It can be hard to keep discussions about parenting time and contact focused on the needs of the children and not on the impact of shared parenting time on child support.

You can get more information about shared parenting time in the Exceptions to the Child Support Guidelines section of the Child Support chapter.

Split parenting time

Split parenting time is a term used by the Child Support Guidelines to describe a kind of parenting situation in which one or more of the children live mostly with each parent.

This is a fairly unusual arrangement as it requires the separation of siblings for a lot of their time, and there's sometimes a risk that siblings will grow apart from each other as time passes. These sorts of orders are only made where there is clear evidence that it is in the best interests of all of the children to divide the family unit, such as when the children are constantly fighting or when one child has a particular attachment to a parent not wholly shared by the other children.

In cases like this, each parent pays the full amount of child support required by the Child Support Guidelines tables to the other parent, based on the number of children in that parent's care. Under section 8 of the Guidelines, the amount that changes hands is the difference between the higher amount of child support and the lower amount of support.

You can get more information about split parenting time in the Exceptions to the Child Support Guidelines section of the Child Support chapter.

Guardianship

Guardianship is a very old concept that goes back to the law of ancient Rome. Although guardianship can be hard to define, it's probably easiest to think of guardianship as the full bundle of rights and duties involved in caring for and raising a child. Historically, guardianship had two aspects: guardianship of the person of the individual, and guardianship of the estate of the individual. Under the Family Law Act, "guardianship" of a child is about being a guardian of the person of the child, which means being responsible for making parenting decisions that are in their best interests. Guardianship of the estate of the child is handled separately, under Part 8 of the act, which talks about children's property.

Most of the time a child's parents will be the child's guardians, but other people can be guardians too, including grandparents and stepparents as well as people who:

• have a court order appointing them as guardians,
• are appointed as the guardian of a child in a guardian's will, and
• are appointed as the standby guardian of a child by a guardian who is facing a terminal illness or a permanent mental incapacity.

It's important to know that a child can have one, two or more guardians, just the way that a child can have one, two or more parents.

Only the Family Law Act talks about guardianship, because making rules about guardianship is a responsibility of the provinces, not the federal government. The federal Divorce Act doesn't — and can't! — talk about guardianship. But the act uses concepts that are a lot like guardianship, when it talks about the rights and responsibilities involved in decision-making responsibility and parenting time.

This section talks about parents who are presumed to be the guardians of a child, how people can apply to be appointed as the guardian of a child, and how people can become a guardian upon the death of a guardian. It also talks about the rights and obligations involved in being a guardian, parental responsibilities and parenting time.

Being a guardian

Section 39 of the Family Law Act sets out the basic rules about who is presumed to be the guardian of a child:

(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian. ...

(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies:

(a) section 30 applies and the person is a parent under that section;

(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian;

(c) the parent regularly cares for the child.

Putting this another way, under section 39(1), parents who lived together for some after their child was born, since birth is when you become a parent, are presumed to be the guardians of their child both during their relationship and after they separate. You don't need an agreement, an order or an award saying you're a guardian, you just are a guardian. It's automatic, as long as you meet the test in section 39(1) of the Family Law Act.

Parents who didn't live together, on the other hand, aren't guardians unless:

• they are parents because of an assisted reproduction agreement signed before the child was conceived (that's the bit about section 30),
• the parent who the child doesn't usually live with and all of the child's guardians make an agreement that the parent is a guardian, or
• the parent who the child doesn't usually live with "regularly cares for the child."

It's easy to show that you're a guardian under section 39(3)(a) and (b) because you'll have a written agreement that says you're a guardian.

It's harder to show that you're a guardian under section 39(3)(c) because the Family Law Act doesn't say exactly what "regularly cares for the child" means. The dictionary definition of "regular" is something that occurs at recurring intervals... but surely "regular" intervals of two hours every three months or every three years isn't what the provincial government meant when it was writing section 39(3)(c). This is important for parents, generally fathers, who weren't living with the other parent, generally birth mothers, when the child was born and never lived with the other parent afterward. In cases like this, you may have to go to court to argue that your "regular care" for the child qualifies you as a guardian under section 39(3)(c). This is what the Court of Appeal said in the 2015 case of A.A.A.M. v. British Columbia (Director of Adoption):

"I doubt that a visit once every calendar year could be intended to qualify as 'regular' for purposes of s. 39(3)(c), even though it could be said to have taken place at regular intervals. It seems to me that the intention of the Legislature was to refer to a parent who has demonstrated a continuing willingness to provide for the child's ongoing needs and a record of 'usually' or 'normally' doing so in fact. Certainly, it connotes something more than simply 'visiting' the child, even at regular intervals."

Now, all of this is really important because if you're a child's guardian, you:

• have parenting time with the child,
• are presumed to be able to exercise all parental responsibilities on behalf of the child,
• have day-to-day care and control of the child and day-to-date decision-making responsibility for the child when the child is with you,
• are entitled to get information about the child's health and education from people who have that information,
• are presumed to be entitled to manage property belonging to the child that's worth less than $10,000,
• have the right to object if another guardian wants to move away with the child, and
• you can appoint someone to be a guardian of your child in the event of your death through your will.

If you're not a guardian, you don't have any of these entitlements. You have contact with the child, if you spend time with the child, you don't have day-to-day care and control of the child or day-to-date decision-making responsibility for the child when the child is with you, you aren't entitled to get information about the child's health and education, and you can't object if a guardian wants to move.

Becoming a guardian

If you're not the guardian of a child and want to become one, your choices depend on your relationship to the child and the views of the child's other guardians. If you are one of the child's parents, you can:

• ask the court for a declaration that you are a guardian because you regularly care for the child under section 39(3)(c) of the Family Law Act,
• make an agreement with the child's guardians that you are a guardian under section 39(3)(b), or
• ask the court for an order appointing you as a guardian of the child, under section 51.

There's also the chance that the other parent might:

• appoint you as a guardian in their will, under section 53 of the Family Law Act, so that you become a guardian of the child when the other parent dies, or
• appoint you as a standby guardian of the child, under section 55, so that you become a guardian of the child when the other parent is diagnosed with a terminal illness or a permanent mental incapacity.

If you are not one of the child's parent, your choices are more limited. You can ask the court for an order appointing you as a guardian of the child, under section 51 of the Family Law Act, or you can be appointed as a guardian in a guardian's will or as a standby guardian. Of course, if time is important or there's little chance that a guardian is going to name you as a guardian in their will or as a standby guardian, then you'll need to apply to court.

Becoming a guardian by agreement

If you are a parent, you can become a guardian under section 39(3)(b) of the Family Law Act by making a written agreement with all of the child's other guardians. But if one of the child's guardians disagrees, you won't have any choice except to apply to court for an order appointing you as one of the child's guardians.

Guardians can't make an agreement appointing anyone other than a parent as a guardian.

Becoming a guardian by court order

Parents and anyone else can apply to be made a guardian of a child under section 51 of the Family Law Act. This section requires a person applying for guardianship, an applicant, to provide certain information about why the order would be in the best interests of the child.

In the Provincial Court, Rule 18.1 of the Provincial Court (Family) Rules requires the applicant to provide a special affidavit in Form 34, signed no more than seven days before it is filed in court. The affidavit requires applicants to talk about:

• their relationship with the child,
• the child's current living arrangements,
• their plans for the parenting of the child,
• any incidents of family violence that might affect the child, and
• their involvement with other court proceedings involving children under the Family Law Act, the old Family Relations Act, the Child, Family and Community Service Act, and the Divorce Act.

The same rule also requires that applicants attach the following documents to their affidavit:

• a criminal records check,
• a British Columbia Ministry of Children and Family Development records check, and
• a Protection Order Registry records check.

The records checks need to be dated within 60 days of the filing of the affidavit in Provincial Court.

For the Supreme Court, Rule 15-2.1 of the Supreme Court Family Rules says much the same thing, and also requires a special affidavit with the same three records checks added as exhibits. The special affidavit, Form F101, must be signed not more than 28 days before the hearing where people will present arguments, or not more than seven days before being filed in court if there will not be a hearing. The records checks must be dated no more than 60 days before the date of the hearing.

To get a criminal records check, go to your local police station. The forms required to get the Ministry of Children and Family Development records check and the Protection Order Registry records check can be found online from the Ministry of Justice. The forms you'll need are:

1. Consent for Child Protection Record Check: This form must be signed in front of a commissioner for taking affidavits, such as a lawyer, a notary public or a registrar of the Supreme Court. Submit the completed form to the court registry where you're making your application.
2. Request for Protection Order Registry Search: This form must also be submitted to the court registry where the application is being made.

Becoming a guardian by will or a standby appointment

Parents and anyone else can be made a guardian if they have been appointed by a guardian as a "testamentary guardian" under section 53 of the Family Law Act or as a "standby guardian" under section 55. Guardians who are appointed in this way don't need to make an application under section 51 and don't need to worry about filing the special affidavit or getting records checks done.

Testamentary guardians can be appointed in the appointing guardian's will or if the guardian completes an Appointment of Standby or Testamentary Guardian in Form 2 of the Family Law Act Regulation. Their appointment takes effect when the appointing guardian dies.

Standby guardians are appointed when the appointing guardian completes an Appointment of Standby or Testamentary Guardian, and their appointment takes effect when the conditions of the appointment are met, usually through a letter from a medical professional confirming that the appointing guardian has a terminal illness or a permanent mental incapacity.

Read more about this way of becoming a guardian in the discussion about the incapacity and death of guardians a bit later in this section.

Avoiding guardianship and terminating guardianship

It's important to know that someone doesn't become the guardian of a child just because of their relationship with someone who is a guardian of that child. Section 39 of the Family Law Act says that:

(4) If a child's guardian and a person who is not the child's guardian marry or enter into a marriage-like relationship, the person does not become a guardian of that child by reason only of the marriage or marriage-like relationship.

Likewise, you won't become a guardian just by living with a guardian as a roommate or being a close fried of a guardian, no matter how much time you spend with the guardian or the child. If you're not a parent of the child, you can only become a guardian if the court makes an order appointing you as a guardian, if a guardian makes a will naming you as a guardian, or if a guardian makes you a standby guardian.

Sometimes, parents want to avoid being a guardian. Section 39 of the Family Law Act also says that

(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child's guardian.

Sometimes, a guardian wants to remove another person as a guardian of a child. In cases like this, the guardian can ask the court for an order "terminating" a person's guardianship of a child, under section 51 of the Family Law Act. This doesn't happen very often, even if the guardians are involved in high levels of conflict and can never agree on anything. Often, the court will take parenting time, parental responsibilities or both away from a guardian before removing them as a guardian.

Inability, incapacity or death of a guardian

When a guardian anticipates being unable to care for a child, either temporarily or permanently, they may appoint someone to act as guardian of the child in their place. No matter the age or health of a guardian, it's always a good idea to think about who might be able to look after the child in the event you die or become to ill to do so, and then record those arrangements in a will or in a Appointment of Standby or Testamentary Guardian form.

Temporary authorizations

Under section 43(2) of the Family Law Act, a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on their behalf. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.

The parental responsibilities that someone can exercise under a written authorization are:

• making day-to-day decisions affecting the child and having day-to-day care, control, and supervision of the child,
• making decisions respecting with whom the child will live and associate,
• making decisions respecting the child's education and participation in extracurricular activities,
• giving, refusing, or withdrawing consent to medical, dental, and other health-related treatments for the child,
• applying for a passport, licence, permit, benefit, privilege or other thing for the child,
• giving, refusing, or withdrawing consent for the child, if consent is required,
• receiving and responding to any notice that a parent or guardian is entitled or required by law to receive,
• requesting and receiving from third-parties health, education, or other information about the child, and
• exercising any other responsibilities reasonably necessary to nurture the child's development.

Authorizations like these are mostly used when a child has to go somewhere else to attend school and the guardian needs to make sure the child is looked after, when the guardian is seriously ill but going to recover, or when the guardian is going to be out of commission for a while to recover from an illness, a surgery or some other kind of debilitating treatment.

Standby appointments

Under section 55 of the Family Law Act, when a guardian is facing a terminal illness or permanent loss of mental capacity, the guardian can appoint someone else to become a guardian of the child when they become incapable of continuing to act in that capacity.

Appointments are made by filling out an Appointment of Standby or Testamentary Guardian in Form 2 of the Family Law Act Regulation. The appointing guardian must sign the form in the presence of two witnesses, neither of whom can be the guardian being appointed. The form must state the conditions that have to be met for the appointment to take effect, such as a doctor's certificate of incapacity. The appointing guardian cannot give a standby guardian any more parental responsibilities than those the appointing guardian had at the time of the appointment.

For the appointment to be effective, the person appointed as a standby guardian must accept the appointment.

A person who is appointed as a standby guardian does not have to apply for an appointment under section 51 of the Family Law Act, and will continue as the guardian of the child after the death of the appointing guardian.

Testamentary appointments

Under section 53 of the Family Law Act, a guardian can appoint someone to become the guardian of a child when they die.

Appointments are made either by filling out an Appointment of Standby or Testamentary Guardian form or in the guardian's will. For appointments made using an Appointment of Standby or Testamentary Guardian, the guardian must sign the form in the presence of two witnesses, neither of whom can be the guardian being appointed. The appointing guardian cannot give the testamentary guardian any more parental responsibilities than those the appointing guardian had at the time of the appointment.

For the appointment to be effective, the person appointed as a testamentary guardian must accept the appointment.

As with standby guardians, a person who is appointed as a testamentary guardian does not have to apply for an appointment under section 51 of the Family Law Act.

Parental responsibilities, decision-making responsibility and parenting time

Under the federal Divorce Act, someone who is a "spouse" may have decision-making responsibility and parenting time with a child. Under the provincial Family Law Act, someone who is a "guardian" may have parental responsibilities and parenting time with a child. The difference in language can be a bit confusing, but you can assume that "decision-making responsibility" under the Divorce Act means pretty much the same thing as "parental responsibilities" under the Family Law Act, and that "parenting time" means the same thing under both statues.

Under the Divorce Act, the parts of an order that talk about decision-making responsibility and parenting time is called a "parenting order." A "parenting plan" is the part of a document, usually an agreement between spouses, that talks about decision-making responsibility and parenting time.

Under the Family Law Act, the parts of orders, agreements and awards that talk about parental responsibilities and parenting time are called "parenting arrangements."

It's important to remember that parenting orders under the Divorce Act are to be made taking into account only the best interests of the child, applying the factors listed in section 16 of the act. The same requirement appears in the Family Law Act, and the parties and the court must make decisions about parenting arrangements taking into account only the best interests of the child, and the factors listed at sections 37 and 38 of that act.

Parental responsibilities and parenting time under the Family Law Act

Section 40 of the Family Law Act talks about who may have parental responsibilities and parenting time with respect to a child, and how they may be shared:

(1) Only a guardian may have parental responsibilities and parenting time with respect to a child.

(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances.

(3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by

(a) one or more guardians only, or

(b) each guardian acting separately or all guardians acting together.

(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:

(a) that parental responsibilities should be allocated equally among guardians;

(b) that parenting time should be shared equally among guardians;

(c) that decisions among guardians should be made separately or together.

This section says a few important things. First, guardians are presumed to exercise all parental responsibilities until an order or agreement says otherwise, and guardians are required to consult with each other in the exercise of these responsibilities.

Second, if you do have an order or agreement, the order or agreement can require all of a child's guardians to share certain parental responsibilities or divide parental responsibilities so that a particular responsibility may only be exercised by one or more guardians acting on their own. For example, in one family, Guardian A and Guardian B might both have parental responsibility for making decisions about the child's schooling and health care, while Guardian A has sole responsibility for making decisions about the child's extracurricular activities and Guardian B has sole responsibility making decisions about the child's language instruction.

Third, the court must not make any assumptions about how parental responsibilities and parenting time are to be shared, equally or otherwise.

The different decisions "parental responsibilities" includes are listed at section 41:

(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, license, permit, benefit, privilege or other thing for the child;

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

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

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

(k) subject to any applicable provincial legislation,

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

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

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

It's important to know that, under section 43(1), guardians must always exercise parental responsibilities in the best interests of the child.

The parts of the Family Law Act that deal with parenting time are much less complicated. Section 42 says this:

(1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order.

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

Remember, however, that section 40(4) says that "no particular arrangement is presumed to be in the best interests of the child," including, at section 40(4)(b), "that parenting time should be shared equally among guardians."

The duty to consult before making decisions

Section 40(2) of the Family Law Act requires a child's guardians to talk to each other before exercising a parental responsibility and making an important decision affecting the child, unless the right to exercise that parental responsibility has been assigned to just the guardian or guardians who are making the decision. This provision is really important. Here it is again:

(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances.

In other words, unless you have the exclusive right to make decisions about the child's schooling, you can't just enrol your child at a school without first talking to the child's other guardians and trying to reach an agreement about where the child will go to school. The same thing applies to other, equally important, decisions about things like health care, choice of religious instruction and so on. Here's how the Provincial Court described the duty to consult in a 2021 case called K.K. v D.H.:

"The starting place, then, is that unless there is an agreement or court order to the contrary, guardians of a child share the responsibility of making decisions respecting where their child resides and, in arriving at that decision, they are expected to consult with one another and then come to a decision as to what is best for their child. ...

“Another underlying principle or philosophy of the FLA is that generally, and but for exceptional circumstances, guardians must avoid, and be discouraged from, unilateral decision-making relating to matters affecting their children. The obvious concern is that making decisions that are ‘one-sided’, and therefore made without a fulsome consideration of the impact of a decision on a child, can result in an outcome that is highly disruptive for a child and ultimately found not to be in a child’s best interests.”

The Supreme Court said much the same thing in a 2021 case called L.D.R. v J.C.L.:

"The parties are both guardians of [the child], the parties share parental responsibilities, and pursuant to s. 40(2) of the FLA there is a duty to consult with each other. The claimant does not have a unilateral or final say."

If a guardian does make a decision about a shared parental responsibility on their own, a unilateral decision, another guardian who disagrees with that decision can apply to court for an order for the decision they think is right. The child's guardians will each be able to explain to the judge why the decision they think is right is the decision that is in the best interests of the child, but there is no guarantee that the judge will agree with the guardian who made the unilateral decision. In the Supreme Court, that guardian also needs to be worried that the court will make a costs order in favour of the guardian who made the application because of the time and expense involved in making that application.

Children and healthcare decisions

Section 41(f) of the Family Law Act is about making decisions about children's health, including medical care and medical procedures, drug prescriptions, dental and orthodontic work, and mental health care including counselling. It says this:

(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;

The reference to the provincial Infants Act probably seems out of place in a statute that's all about families and family breakdown. It makes a lot more sense when you look at what section 17 actually says:

(1) In this section:

“health care” means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health related purpose, and includes a course of health care;

“health care provider” includes a person licensed, certified or registered in British Columbia to provide health care.

(2) Subject to subsection (3), an infant may consent to health care whether or not that health care would, in the absence of consent, constitute a trespass to the infant’s person, and if an infant provides that consent, the consent is effective and it is not necessary to obtain a consent to the health care from the infant’s parent or guardian.

(3) A request for or consent, agreement or acquiescence to health care by an infant does not constitute consent to the health care for the purposes of subsection (2) unless the health care provider providing the health care

(a) has explained to the infant and has been satisfied that the infant understands the nature and consequences and the reasonably foreseeable benefits and risks of the health care, and

(b) has made reasonable efforts to determine and has concluded that the health care is in the infant’s best interests.

This section of the Infants Act allows "children" – persons under the age of 19 in British Columbia – to make their own decisions about their healthcare, with or without the consent of their guardians, as long as the healthcare provider has decided that:

• the care is in the best interests of the young person, and
• the young person understands the nature and consequences of the care, and its reasonably foreseeable benefits and risks.

This provision of the Infants Act seems to conflict with the parts of section 41 of the Family Law Act on guardians' responsibility to make healthcare decisions for a child. The Court of Appeal discussed how the Infants Act and the Family Law Act work together in a 2020 case called A.B. v C.D.:

“Under s. 41(f), parental responsibility for ‘giving, refusing or withdrawing consent to medical, dental and other health related treatments for the child’ is subject to s. 17 of the Infants Act. ... This reflects a carefully legislated balance between parental responsibilities, medical expertise, the protection of young people, and the right of a capable individual to medical self-determination.

“Clearly ‘subject to s. 17’ means subject to a lawful exercise of the rights accorded to mature minors under s. 17. The lawful exercise of those rights requires a health care provider to assess whether the ‘infant’ understands the nature, consequences, benefits, and risks of the proposed treatment, and whether the treatment is in that individual’s best interests.

“The court’s approach to that review must be deferential given the legislative intent behind s. 17 to recognize the autonomy of mature minors and the expertise and good faith of the health care providers.”

In other words, children who are able to make their own decisions about their healthcare get to make those decisions, regardless of the views of one or more of their guardians.

Decision-making responsibilities and parenting time under the Divorce Act

Section 2(1) of the Divorce Act defines "decision-making responsibilities" and "parenting time" relatively briefly:

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

(a) health;

(b) education;

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

(d) significant extra-curricular activities; ...

parenting time means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time;

The word "including" at the beginning of the definition of decision-making responsibility means that the sort of "significant decisions" that fall under the heading of "decision-making responsibility" isn't limited to just the four decisions listed in the definition. The longer list of parental responsibilities provided in section 41 of the Family Law Act can all be addressed in orders about decision-making responsibility under the Divorce Act.

Section 16.1 talks about the kind of parenting orders the court may make:

(4) The court may, in [a parenting order],

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate. ...

(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

Section 16.3 talks about decision-making responsibility:

Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

Finally, sections 16 and 16.2 talk about parenting time. Section 16.2 is about the orders the court can make:

(1) Parenting time may be allocated by way of a schedule.

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

Section 16(6) gives some additional guidance to the court when it makes orders about parenting time. It says that:

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.

Under the old Divorce Act, this was known as the "maximum contact" principle. The new Divorce Act drops this term to emphasize that under the new legislation, just like under the old legislation, decisions about children's time with each spouse are to be guided only by the child's best interests. This section does not create an automatic right to a shared parenting schedule.

Making parenting arrangements

You have a number choices when it becomes important to formalize the parenting arrangements for a child. You can come up with an agreement with the other parent, using negotiation, mediation, or a collaborative settlement process, or, if you can't agree, you can go to court or you can decide to use arbitration. Arbitration, like mediation, is a process that everyone involved needs to agree to use. However, unlike mediation, in arbitration if the parties cannot agree, the arbitrator will make a final and binding decision. You can get more information about negotiation, mediation, collaborative settlement processes and arbitration in the chapter Resolving Family Law Problems out of Court, and more information about litigation in the chapter Resolving Family Law Problems in Court.

It sometimes takes a while for parents to get to the point where they feel they must get something formal in place. Sometimes, people are just content with how things are working. In cases like this, where a stable parenting arrangement has managed to gel over time, section 48 of the Family Law Act says that a guardian shouldn't make unilateral changes to those arrangements without talking to the other guardians first:

(1) If

(a) no agreement or order respecting parenting arrangements applies in respect of a child, and

(b) the child's guardians have had in place informal parenting arrangements for a period of time sufficient for those parenting arrangements to have been established as a normal part of that child's routine, a child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to those arrangements, unless consultation would be unreasonable or inappropriate in the circumstances.

(2) Nothing in subsection (1) prevents a child's guardian from seeking

(a) an agreement respecting parenting arrangements, or

(b) an order under section 45.

When formal arrangements are required, section 44 of the Family Law Act allows two or more of a child's guardians to make an agreement about the allocation of parental responsibilities and parenting time, as well as how disputes about those parenting arrangements will be resolved. (Agreements like these can't be made until the guardians have separated or are about to separate.) If agreement is impossible, a guardian can apply for a court order about parenting arrangements under section 45 of the Family Law Act, and married spouses can apply for a parenting order under section 16.1 of the Divorce Act.

When a child has more than one parent, the parents must work together and cooperate in raising the child. This can sometimes be difficult, particularly when there is a lot of conflict in the parents' relationship with each other. Before the Family Law Act came into effect, the rights and obligations involved in raising children were addressed through agreements and orders about custody, guardianship and access under the old Family Relations Act. Similarly, before the new Divorce Act came into effect, these issues were addressed through orders about custody and access under the old Divorce Act. Now, the Family Law Act talks about parental responsibilities and parenting time and the Divorce Act, using similar ideas and similar language, talks about decision-making responsibility and parenting time. The first section in this chapter, Children, talks about how to understand agreements and orders made under the old Divorce Act applying the language of the new Divorce Act in "Parenting after separation and the law."

Parental responsibilities and decision-making responsibility

Guardians can make agreements about how parental responsibilities for a child will be shared between them under section 44 of the Family Law Act. These agreements:

• should be written down whenever possible, and
• can only been made when the guardians have separated or are about to separate.

Written agreements can be filed in court under section 44(3) of the act and, once filed, can be enforced just like they are orders of the court.

Where guardians can't agree on how parental responsibilities for a child will be shared, they can apply to court to get an order about how they'll be shared under section 45 of the Family Law Act. Parents who are married can also apply for an order about how decision-making responsibility will be shared under section 16.1 of the Divorce Act.

Orders about parental responsibilities and decision-making responsibility are either interim or final, and, like agreements, cannot be made until the parents have separated. An "interim order" is an order that has been made after a court proceeding has been started but before the court proceeding has wrapped up with final order made after trial or by a final order that is made with the agreement of the parties. Interim orders can be changed by other interim orders. A "final order" is an order that is made by a judge either after a trial or by the agreement of the parties. Final orders can be changed too, providing there has been an important change in the circumstances of a party or a child, but are otherwise intended to be permanent.

Sharing all responsibilities

Most of the time, guardians wind up sharing all parental responsibilities with respect to a child and married spouses wind up sharing all decision-making responsibilities. This sort of arrangement can be agreed to or ordered regardless of how much time the children spend with each parent. However, this arrangement does require that parents work together and cooperate in raising the children.

Where parents work well together, and have similar approaches to parenting and similar hopes and expectations for their children, this arrangement can work quite well. However, when parents are likely to run into problems resolving disagreements on their own, it can sometimes help to have a "tie-breaker" clause added into the agreement or order. A common tie-breaker clause under the Family Law Act looks like this:

The parties will share all parental responsibilities with respect to the child. Except in emergencies, the parties must consult each other before making a significant decision affecting the child. In the event that the parties, despite their best efforts, cannot agree on a significant decision affecting the child, Guardian A will make the decision and Guardian B may apply to court for directions or an order about the decision under section 49 of the Family Law Act.

(Section 49, if you're curious, says that "a child's guardian may apply to a court for directions respecting an issue affecting the child, and the court may make an order giving the directions it considers appropriate.")

Tie-breaker clauses like this are helpful because they ensure that important decisions do get made, even if a parent disagrees. The parent who disagrees has the right to go to court to challenge the decision, but also has to think about the time and money involved in making the application. Is the decision so important that the cost of going to court is justified?

Sharing some responsibilities

Where parents generally work well together, but have different parenting philosophies and different hopes and expectations for the children, it may be better that only one parent has responsibility for making decisions about certain subjects while both parents continue to share responsibility for other subjects. In general, the subjects that are assigned to one parent tend to be big, all-or-nothing subjects where compromise is difficult if not impossible, such as decisions about the child's:

• religious instruction, particularly when parents have very different religious beliefs,
• healthcare, particularly when parents have different views about the efficacy of traditional medicine or their views about medicine are influenced by religion, and
• education, particularly where parents have different views about the efficacy of the public school system or concerns about the curriculum.

During COVID-19, for example, the courts were very busy dealing with applications about whether children should or should not be vaccinated and must or must not wear masks. Where parents disagree about issues like these, it's often the case that no dispute resolution process will help them see eye to eye.

A common set of clauses sharing some but not all parental responsibilities under the Family Law Act might look like this:

The parties will share all parental responsibilities with respect to the child, except for decisions concerning the education of the child and the child's participation in extracurricular activities. Except in emergencies, the parties must consult each other before making significant shared decisions affecting the child.

Guardian A will be solely responsible for making decisions concerning the education of the child. In the event that Guardian B disagrees with a decision made by Guardian A, Guardian B may apply to court for directions or an order about the decision under section 49 of the Family Law Act.

Guardian B will be solely responsible for making decisions concerning the child's participation in extracurricular activities. In the event that Guardian A disagrees with a decision made by Guardian B, Guardian A may apply to court for directions or an order about the decision under section 49 of the Family Law Act.

This example is just an example. There is no requirement that if one parent gets sole responsibility for one kind of decision that the other parent automatically gets sole responsibility for another kind of decision. Depending on the issues and the circumstances, it could certainly be the case that just one parent winds up with sole responsibility for all hotly-contested decisions.

Sharing no responsibilities

When the conflict between parents is extreme or a parent has rarely or never been involved in the child's day-to-day life, it may be more appropriate that the parent who has primarily cared for the child in the past, and usually been responsible for making decisions about the child, continue in that role and be the only parent with parental responsibilities or decision-making responsibilities. A clause with this sort of arrangement under the Family Law Act might look like this:

Guardian A will have all parental responsibilities with respect to the child and is not required to consult with Guardian B before making a significant decision affecting the child.

Parallel parenting or silo parenting

Parallel parenting is a way of distributing parental responsibilities between guardians that is best suited for situations where each of the guardians may be a good parent and the children would do well with either of them, but the parents are unable to cooperate on parenting decisions. A helpful 2004 decision of the Provincial Court, J.R. v. S.H.C., 2004 BCPC 0421, discusses the concept of parallel parenting at length:

• A guardian assumes complete responsibility for the children when they are with them.
• A guardian has no say over the actions of the other guardian when the children are in that guardian's care.
• There is no expectation of flexibility between the guardians.
• A guardian does not plan activities for the children when they are with the other guardian.
• Contact between the guardians is minimized and children are not asked to pass messages to the other guardian. When the guardians must communicate, they do so by writing in a book that the children take with them from one home to the other.

An example of parallel parenting being ordered is Sodhi v. Sodhi, 2014 BCSC 1622.

To further minimize disputes, guardians who are parallel parenting may be assigned specific parental responsibilities over which they will have sole authority. For example, one guardian might be responsible for educational and religious issues while the other is responsible for sports and music lessons.

Parallel parenting is not a term you will find in the Family Law Act or in the Divorce Act.

Interim orders

Interim orders are usually intended to provide a rough structure to the legal relationship between the parties and their children that will last until the matter is finally resolved at trial. Interim orders are not meant to be perfect orders and are often made on less than perfect evidence. The result at trial may be the same or different than the situation in the interim.

An interim custody order is not a final determination of the issue and while the same considerations are applied in making an interim order as they are in a final order, a greater emphasis is placed on the child's immediate and short-term best interests. As a result, the courts will often preserve the existing situation (the status quo) and leave the child with whichever parent they are mostly living with, rather than disturb the child and require a change of homes. In other words, if the father left the family home when the parties separated, leaving the children with their mother, the court will likely allow that situation to stand until the final decision is made.

It can be difficult to change the children's living circumstances once a stable arrangement has been reached, and both parents should be very careful and consider their options if things come to the point where one parent has to move out of the family home. Interim orders can, however, be changed. Generally, a parent will apply to vary an interim order where there has been a change in circumstances that has affected the best interests of the child. Where there has not been such a change in circumstances, the interim order will usually stay as it was.

Parenting time

Orders for access are either of two types of order: interim orders and final orders. Interim orders are made before trial, and final orders are made either by a judge after trial or with the agreement of the parents without a trial.

Shared custody

Shared custody is a term used by the Federal Child Support Guidelines to describe a kind of joint custody situation in which the children spend an equal or almost equal amount of time with each parent. Where parents have shared custody, the children will usually spend a certain amount of time with one parent at that home and a similar amount of time with the other parent at their home. Shared custody can require that the children switch homes every three or four days, every other week, every two weeks, or every month; the amount of time the children spend with each parent will depend on the circumstances of each case, the age of the children, the parents' work schedules, and the schedules of the children's activities.

In many ways, this is an ideal form of custody since the children spend an equal amount of time with each parent, and have an equal opportunity to bond with each parent. Shared custody usually requires that:

• the parents live fairly close to one another,
• the parents have adequate communication skills with one another,
• both parents are able to put the children's needs ahead of their own,
• the children are old enough to be able to tolerate the disruption of living in two different homes, and
• the arrangement is in the best interests of the children.

Of course, there are downsides to this sort of order. The strain of communicating so frequently with the other spouse can be a bit of a burden; it can be costly to maintain a full set of clothing, shoes, toiletries, and supplies at each house; and, no matter what, the children are still moving from one house to another each week.

Important changes
As a result of the changes to the Divorce Act, the language used in the Child Support Guidelines has also changed. "Shared custody" is now known as shared parenting time.

Split custody

Split custody is a term used by the Federal Child Support Guidelines to describe a kind of parenting situation in which one or more of the children live mostly with each parent. The parents may have sole custody of the children in their care or they may have joint custody of all of the children, regardless of where the children live.

This is a fairly unusual order as it requires the separation of siblings and there is a risk that they may grow apart from each other as time passes. These sorts of orders are only made where there is clear evidence that it is in the best interests of all of the children to fracture the family unit, such as when the siblings are constantly fighting or at each other's throats, or when one child has a particular attachment to a parent not wholly shared by the other children. In such cases, a needs of the child assessment, prepared under section 211 of the Family Law Act, confirming that the children should be split apart is essential.

Important changes
As a result of the changes to the Divorce Act, the language used in the Child Support Guidelines has also changed. "Split custody" is now known as split parenting time.

Important changes
Under the changes to the Divorce Act that took effect on 1 March 2021, "access" is now known as parenting time, for people who are or used to be married to each other, or as contact for other people.

Interim orders

The section on Interim Applications in Family Matters in the chapter Resolving Family Law Problems in Court discusses interim orders more fully. Interim orders are intended to be a sort of rough-and-ready solution to the legal problems spouses face after they have separated, and are really only meant to last until a final decision is made following trial or a settlement of the action. Interim orders are short-term solutions intended to deal with the immediate problems about where a child will live and the role each spouse will play in raising the child. Interim access will be decided after a decision has been made about the child's primary residence.

While an interim order will be made based on the same considerations that apply to final orders, a lot of weight is usually given to the status quo — the parenting arrangements in place at the time the application for the interim order is made — in order to minimize the amount of disruption the child has to deal with while the spouses' legal issues wind their way through the court system.

However, the wrongful conduct of spouse will not establish a status quo that the court will respect. If a parent is seeing a child too little or if the other parent is withholding access, the court will act on an interim basis to expand the time the parent has with the child; if a parent has taken off with the child, a court may order the parent and child to return.

Specified and unspecified access

Every order for access, whether interim or final, will say that a spouse will have either a set schedule of time with the child or something much more ambiguous that really isn't a schedule at all. Some orders will provide for both a set schedule of access and "such other access as the parties may agree."

Unspecified access is usually described as "liberal and generous access" in orders and family agreements. This sort of access is appropriate where the spouses can communicate with each other reasonably well and each is prepared to accommodate the other. Where there is any tension between the spouses relating to the children, such an order may not be appropriate, particularly if there is a chance that one parent will withhold the child from the other. In fact, it may be a recipe for disaster.

Specified access is probably the more common kind of access. Specified access orders state at what times and dates a spouse will have the child. These orders can be quite complex, dividing holidays, birthdays, Mothers' Day and Fathers' Day, special school days, and so on. Specified access orders can encompass pretty much every kind of arrangement that you can think of, or be limited and general. A typical specified access order might provide that a spouse will see the child every other weekend, from a certain time on a certain day until a certain time on another day, on a couple of weeknights between certain times, and on certain holidays in alternating years.

In general, the more difficult the spouses' relationship is following separation, the more likely it is that the order will specify the access schedule on very detailed terms. Some people just need a set of rules to live by.

A chart showing a number of different parenting schedules is available in the section Parenting after Separation.

Conditional access

A spouse's access to their child can be made conditional upon the parent doing or not doing something. If a parent fails to meet any of the conditions on which they may have access to the child, the parent's access to the child may reasonably be denied.

In general, the court must have some fairly serious concerns about a parent's lifestyle or behaviour before an access order will be conditional. Conditional access orders have been made in cases such as the following:

• a parent was a heavy smoker (the condition being not to expose the child to second-hand smoke),
• a parent used drugs or alcohol (not to use drugs or alcohol while with the child and for a period of 24 hours before access), and
• a parent was a dangerous driver (not to drive with the child in the car).

In theory, access can be made conditional for pretty much any kind of genuinely bad behaviour on the part of a parent that poses an actual risk to the child.

Supervised access

Access may be restricted where there is a concern that the visits may result in harm to the child. In extreme cases, the court may require that a spouse's access be supervised by a third party. Such supervision may be by a grandparent, another relative, or by a person who specializes in supervising access. There are even companies that provide supervised access services.

The courts are generally reluctant to require supervision as a condition of a spouse seeing a child, but they will do so where:

• there has been a history of child abduction or attempts to abduct the child,
• there is a history of abuse against the child or the other parent,
• the parent has attempted to poison or alienate the child against the other parent or otherwise interfere with the child's relationship with the other parent, or
• there are serious concerns about the parent's ability to properly care for the child (this may include the parent having a mental or physical illness).

In general, supervised access is intended to be a short-term solution to a problem, rather than a permanent condition of access. Remember that it is up to the spouse who says someone's access should be supervised to prove why it should be supervised.

Interplay Between the Divorce Act and the Family Law Act

Section 16(1) of the Divorce Act contains the "maximum contact" principle with respect to each parent's access to a child.

Section 40(4) of the Family Law Act specifically sets out that "...no particular arrangement is presumed to be in the best interests of the child...."

Even if your matter is proceeding under the Divorce Act, the British Columbia Supreme Court in a case called D.M.L. v. D.B.L confirmed that the maximum contact principle is not absolute, and that the court will only give effect to the maximum contact principle to the extent that it is consistent with the best interests of the child. Moreover, in determining what is in the best interests of a child, the court can consider the factors listed in section 37(2) of the Family Law Act.

Contact

Under the Family Law Act, the time people who are not guardians, including parents who are not guardians, have with a child is called "contact." The language is the same under the Divorce Act, except that "contact" refers to the time people who are not married spouses have with a child.

It's important to remember that contact orders under the Divorce Act are to be made taking into account only the best interests of the child, applying the factors listed in section 16 of the act. The same requirement appears in the Family Law Act, and the parties and the court must make decisions about contact taking into account only the best interests of the child, and the factors listed at sections 37 and 38 of that act.

Contact under the Family Law Act

The Family Law Act doesn't say much about contact compared to what it has to say about parental responsibilities and parenting, except to say that anyone can apply for contact, including parents and grandparents. This is the definition of contact from section 1 of the act:

contact with a child or contact with the child means contact between a child and a person, other than the child's guardian, the terms of which are set out in an agreement or order;

A schedule of contact can be set by agreement between the person seeking contact with a child and the child's guardians under section 58 of the Family Law Act, or a schedule of contact can be fixed by a court order made under section 59. Agreements for contact are only good if they are signed by all of the child's guardians who have the parental responsibility of determining who can have contact with the child.

Contact under the Divorce Act

The Divorce Act has just as much to say about contact as the Family Law Act. The definition of "contact" in section 2(1) isn't very helpful, and just says this:

contact order means an order made under subsection 16.5(1);

Section 16.5

Orders and agreements about parenting after separation

Final orders and agreements

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The provincial Family Law Act talks about the care of children in terms of guardians and the rights and duties they have for the children in their care. Most of the time a child's parents will be the child's guardians, but other people can be guardians too, including people who have a court order appointing them as guardians and people who are made guardians by a guardian's will.

Guardians raise the children in their care by exercising parental responsibilities in the best interests of the children. Parental responsibilities include deciding where a child goes to school, how a sick child is treated, whether a child is raised in a religion, and what sports the child plays after school. All of a child's guardians can exercise all parental responsibilities, or parental responsibilities can be divided between guardians, so that only one or more guardians have the right to make decisions about a particular issue. The concept joint guardianship is not incorporated into the Family Law Act; however, many people, including judges, still use that language in error.

The time a guardian has with a child is called parenting time. During parenting time, a guardian is responsible for the care of the child and has decision-making authority about day-to-day issues.

People who are not guardians, including parents who are not guardians, do not have parental responsibilities. Their time with a child is called contact. A person who is not a guardian does not have decision-making authority when the child is in their care.

Introduction

The federal Divorce Act talks about the care of children in terms of custody and access. Custody is the right to have the child with you and the right to make parenting decisions about the child, such as deciding where a child goes to school, how a sick child is treated, whether a child is raised in a religion, and what sports the child plays after school. Access is the schedule of the child's time between spouses.

Custody can be held by one or both spouses. An arrangement where both spouses share custody is called joint custody. Having joint custody doesn't mean the child's time is equally split between the spouses' homes, but it does mean that both spouses will participate in making parenting decisions. An arrangement where only one spouse has custody is called sole custody.

Access generally refers to the schedule of the child's time between spouses. There are no fixed rules about what access should look like. The factors that the court usually thinks about when making decisions about access include:

• the distance between the spouses' homes,
• the quality of the child's relationship with both spouses,
• the history of the child's care before the spouses separated,
• the child's age and stage of development,
• any arrangements that have already been made for siblings, and
• any limitations on a spouse's parenting capacity.

A spouse's access to a child is entirely different and separate from their obligation to pay child support. Child support is not a fee paid to exercise access, nor is it a fee charged to allow access. Child support is paid by one spouse to the other to help cover the costs associated with raising the child and providing them with as positive and as enriching a childhood as possible. Access, on the other hand, is the privilege of a spouse to visit and spend time with their child, so that the child can have the benefit of a strong, loving, and meaningful relationship with both spouses.

Other people, usually relatives of the child like a grandparent, can have custody or access to a child. To apply for an order for custody or access, people who aren't spouses must first get the court's permission, and then make their application. Applications like these aren't very common.

Important changes
Under the changes to the Divorce Act that took effect on 1 March 2021, "custody" is now known as decision-making responsibility and "access" is now known as parenting time, for people who are or used to be married to each other, or as contact for other people. Decision-making responsibility under the Divorce Act means the same thing as parental responsibilities under the Family Law Act.

Older orders and agreements that use the terms custody and access are still good and don't need to be updated to the new language. If you have an older order or agreement that says you have custody, you now have decision-making responsibility for your children. If you are or were married to your ex and have an agreement that says you have access, you now have parenting time.

Factors in custody awards

There are two sets of factors that the court will consider in making an order for custody: the factors set out in the legislation and the additional factors that have developed through the courts. As far as the legislation is concerned, section 16(8) of the Divorce Act provides that:

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 courts have expanded these factors into the following general principles:

• The parent most likely to be granted sole custody is the person who was the children's primary caregiver during the relationship, assuming that it's necessary to make an order for sole custody for some reason.
• Each parent's character, fitness, and ability to parent may be considered in determining custody, depending on the circumstances of the case and as long as issues like this are genuinely important and relevant.
• The court may consider each parent's mental and physical capacity in determining custody, depending on the circumstances of the case and, again, as long as issues like this are genuinely important and relevant.
• Siblings will usually be kept together, although they can be separated when it would be in their best interests to live apart.
• Where the children are in a stable and satisfactory setting, the court will be reluctant to alter the status quo, unless the long-term interests of the children outweigh the benefits of disturbing their present stability.
• The court will generally take into account the preferences of children who are 10 or 11 years old or older, but the court will not be bound to follow the children's wishes.

There is no guaranteed way to predict the outcome of a battle for custody. Some people believe that the courts will prefer giving custody of children to their mothers; others believe that the courts have adopted a more modern approach which focuses on parenting rather than on gender. Either way, the critical factor in a custody award is the best interests of the child. The parent who is obviously the primary caregiver will usually be the person with whom it is in the child's best interests to remain.

While both the Divorce Act and the Family Law Act speak of a child's best interests, section 16(10) of the Divorce Act, the Maximum Contact Principle, flies in the face of the Family Law Act's presumption in section 40(4) that in making parenting arrangements, no particular arrangement is presumed to be in the best interests of a child.

Important changes
Under the changes to the Divorce Act, "custody" is now known as decision-making responsibility, and judges have a long list of best-interests factors to take into consideration when making decisions about decision-making responsibility. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the Divorce Act now includes a list of additional factors for judges to consider, including the nature and frequency of the violence.

Factors in access awards

Section 16(10) of the Divorce Act says this about making orders for custody and access:

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.

This subsection has come to be known as the maximum contact principle, for the obvious reason. This principle is not absolute, however. As the BC Court of Appeal in R. (T.) v. R. (D.), 2017 BCCA 203 recently explained, the maximum contact principle is "tempered by the fact that contact must still be in the child's best interests." For example, it would not be in a child's best interests to have extensive visits with a parent who is abusive, trash-talks the other parent, has poor parenting skills, is addicted to drugs or alcohol, or has a history of being uninvolved in the child's life. If a parent's past conduct is relevant to their ability to act as a parent, then that past conduct may be considered.

The following are some of the factors the courts will consider in making an order for access.

• Age of the child: The younger a child is, the more likely it is that an access award will be for short but frequent time periods only. The older a child is, the more likely it is that access will be granted for overnight visits and for more than one day in a row. Younger children often require more constant physical attention and more extended periods of time with the custodial parent.
• Distance between homes: If one parent lives far away from the other parent, the court may grant access on holidays or long weekends alone. Younger children, in general, do not have the tolerance for long road trips or extended air or ferry travel. Even school-age children may find extended travel times uncomfortable and disrupting.
• Work schedules: Access schedules must accommodate parents' work schedules. If a parent is off work and available to care for the children when the other parent is at work, the parent who isn't working ought to have the children. Parents' availability also dictates the timing of pick-ups and drop-offs and responsibility for the children when they're at school.
• Conduct of a spouse: If a parent is unable to meet the child's needs or behaves inappropriately, access to the child may be restricted. In the past, access has been denied to non-custodial parents with a history of alcoholism, abuse, or pedophilia, or who have abducted the child or attempted to alienate the child from the other parent.
• Health of a spouse: If a parent has health problems that affect their ability to care for the child or their relationship with the child, a court may limit access.
• Preferences of the child: The court will consider the wishes of the child once they reach about 10 to 12 years of age, although there really is no magic age and the court will not be bound by the child's wishes. Younger children are generally assumed to be too emotionally and intellectually immature to make a reasoned decision about access.

There really is no standard pattern of access. All of these factors usually get taken into account when an access schedule is designed, and, in general, an access schedule can be as creative as the flexibility of the spouses and common sense allow.

This chapter has a chart of different parenting schedules that accommodate some of these concerns in the section Parenting after Separation.

Important changes
Under the changes to the Divorce Act, "access" is now known as parenting time, for people who are or used to be married to each other, or as contact for other people. Judges also have a long list of best-interests factors to take into consideration when making decisions about children, including decisions about parenting time and contact. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the Divorce Act now includes a list of additional factors for judges to consider, including the nature and frequency of the violence.

Resources and links

Legislation

• Divorce Act

Resources

• The Joyce model for joint custody (PDF)
• The Horn model for joint custody (PDF)

Links

• Ministry of Attorney General's website "Parenting After Separation (PAS) Program"
• Justice Education Society's workshop Parenting After Separation (online and in-person options)
• Dial-A-Law Script "Custody and Access, Guardianship, Parenting Arrangements, and Contact"
• Legal Services Society's Family Law website's information page on "Parenting & guardianship"
  • See "Access"
  • See "Custody"
• Clicklaw Common Question "We can’t agree about who the children should live with

Resources and links

Legislation

• Family Law Act
• Family Law Act Regulation
• Child, Family and Community Service Act
• Divorce Act
• Provincial Court (Family) Rules
• Supreme Court Family Rules

Links

• Justice Education Society: Parenting After Separation program
• Dial-A-Law Script "Custody and access, guardianship, parenting arrangements and contact"
• Legal Services Society's fact sheet "How to Become A Child's Guardian"
• Legal Services Society's Family Law website's information page "Parenting & guardianship"
  • See "Guardianship, parenting time and parental responsibilities"

Examples of Parenting Arrangements

Parallel parenting or silo parenting

Parallel parenting is a way of distributing parental responsibilities between guardians that is best suited for situations where each of the guardians may be a good parent and the children would do well with either of them, but the parents are unable to cooperate on parenting decisions. A helpful 2004 decision of the Provincial Court, J.R. v. S.H.C., 2004 BCPC 0421, discusses the concept of parallel parenting at length:

• A guardian assumes complete responsibility for the children when they are with them.
• A guardian has no say over the actions of the other guardian when the children are in that guardian's care.
• There is no expectation of flexibility between the guardians.
• A guardian does not plan activities for the children when they are with the other guardian.
• Contact between the guardians is minimized and children are not asked to pass messages to the other guardian. When the guardians must communicate, they do so by writing in a book that the children take with them from one home to the other.

An example of parallel parenting being ordered is Sodhi v. Sodhi, 2014 BCSC 1622.

To further minimize disputes, guardians who are parallel parenting may be assigned specific parental responsibilities over which they will have sole authority. For example, one guardian might be responsible for educational and religious issues while the other is responsible for sports and music lessons.

Parallel parenting is not a term you will find in the Family Law Act or in the Divorce Act.

Birdnesting

Birdnesting refers to a parenting schedule where the children live full-time in the family home and their parents move in and out. This type of arrangement may be common when parents are separating and don't yet have separate residences.

When parents birdnest, the children remain in the same place and it's the parents who do the moving, normally while maintaining separate homes outside the family home.

The theory underlying this concept is that it is disruptive for children to switch homes every week and that it can be too costly to make sure there's a full set of clothing, toys, books, and whatnot in both houses. Birdnesting lets the kids stay in a single home, usually the family home that they've grown up in. Of course, the cost saved by avoiding duplication of the children's clothes and books is offset by the need to maintain two or possibly three homes: the family home, and a home for each of the parents.

Birdnesting is a term that has been created by lawyers and judges, like the term primary residence. Birdnesting is not a term you will find in the Family Law Act or the Divorce Act.

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

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