Difference between revisions of "Guardianship, Parenting Arrangements, and Contact"

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{{DEMOWARNING}}
{{REVIEWEDPLS | reviewer = [https://www.boydarbitration.ca/ JP Boyd, KC], Boyd Arbitration Chambers|date= March 2020}} {{Dial-A-Law TOC|expanded = divorce}}
{{Dial-A-Law Blurb}}
When parents separate, they must work out the details of how their children will be cared for. This includes decisions about guardianship, parenting arrangements, and contact. Learn about these parenting after separation issues and the laws that apply in your situation.


For couples that are thinking about separating or have already separated, the continued parenting of the children is often the biggest concern. This script discusses custody and access under the ''Divorce Act'' and guardianship, parenting arrangements and contact under the ''Family Law Act''. It applies to anyone who is a parent, regardless of the nature of the parents’ relationship with each other.
{| class="wikitable"
|align="left"|'''Alert!'''
This information has been updated to reflect [https://dialalaw.peopleslawschool.ca/the-divorce-act-is-changing changes to the ''Divorce Act''] that took effect on March 1, 2021, as well as [https://www.provincialcourt.bc.ca/enews/enews-27-04-2021 new Provincial Court Family Rules] that took effect on May 17, 2021.
|}


==Which law applies?==
==What you should know==
Both the federal ''Divorce Act'' and the provincial ''Family Law Act'' talk about the care of children when their parents have separated. The ''Divorce Act'' only applies to parents who are or were married to each other. The ''Family Law Act'' applies to all parents, whether they were in married or unmarried spousal relationship, were in a dating relationship or weren’t dating at all.


==What does “custody” mean?==
===Two laws deal with the care of children===
Custody is a term used by the ''Divorce Act''. It means the right to exercise a parent’s authority over a child and includes the right to say how a child is raised and make decisions on behalf of the child, like where the child goes to school, how the child gets treated when sick and what sports the child plays.
When parents separate, they have to make some basic decisions about their children. Where will they live? How will they make decisions about the children? How much time will they spend with each parent?


==What are the different ways to decide custody?==
There are two laws that deal with these issues: the federal [http://canlii.ca/t/7vbw ''Divorce Act''] and BC’s [http://canlii.ca/t/8q3k ''Family Law Act'']. The ''Divorce Act'' only applies to parents who are (or used to be) '''married''' to each other. The ''Family Law Act'' applies to '''all''' parents. It applies whether the parents are:
Both spouses can have custody of a child after they separate, called “joint custody”, or only one spouse can have custody of a child, called “sole custody”. When a spouse has sole custody, only that spouse has parental authority over the child.


Custody is usually resolved by a written agreement between the parents or by going to court and applying for an order about custody. Note that a court order always takes priority over an agreement, so if you’re having difficulty resolving custody with the other spouse, you should apply to the court for a custody order.
* married or unmarried spouses,
* dating, or
* not in a relationship.


Most of the time spouses wind up with joint custody of their child. Joint custody doesn't mean that the child’s time is divided equally between the spouses, although that is a common way of distributing children’s time, but it does mean that the spouses have to work together when making decisions about the child.
Under both laws, if parents can’t agree about the care of their children, they can ask a court to decide. Under the ''Family Law Act'', parents can also ask an arbitrator to decide. When making decisions like these, courts and arbitrators ''only'' consider the '''best interests of the children'''.


Sole custody can be awarded to a spouse if: there has been family violence; the other spouse has drug or alcohol problems; the spouses are constantly arguing with each other about parenting decisions; the other spouse has been absent from the child’s live; or for other similar reasons.
===The terms used to talk about parenting after separation===
As of March 1, 2021, the terms “custody” and “access” are no longer used in the ''Divorce Act''. Instead, the Act uses terms to talk about parenting arrangements that are very much like the BC ''Family Law Act''.


==What does “access” mean?==
====Decision-making responsibility and parenting time====
Access is a term used by the ''Divorce Act''. It usually refers to the visitation schedule of the spouse with the least amount of time with the children.
Under the ''Divorce Act'', '''decision-making responsibility''' means how married spouses make choices about important aspects of the children's lives. This includes where they go to school and how they’re treated when they get sick. It also includes what sports and other important activities they'll be involved in and if they’ll be raised in a religion. Decision-making responsibility can be shared between spouses or given to just one spouse.  


A spouse’s access can sometimes be subject to a requirement that the spouse do or not do something during the access visit, such as smoking, drinking alcohol or driving with the child in the car. Access that depends on certain requirements of a parent’s behaviour is called “conditional access”.
'''Parenting time''' is just like it sounds. It’s the time a spouse spends with a child. Usually this is set by a schedule agreed on by the spouses or set by the court. During their parenting time, each spouse can make daily decisions about a child, such as decisions about bedtime, homework, and meals.


Where there is a serious risk to the safety of the child, a spouse’s access can be subject to the requirement that the access occur in the presence of another adult. This is called “supervised access”.
A spouse who has decision-making responsibility or parenting time also has the right to ask for and get information about a child’s health, education, and welfare.


==How is access decided?==  
====Guardians, parental responsibilities, and parenting time====
Access is settled the same way as custody – either by court order, written agreement or the spouses’ informal arrangements. When spouses must go to court, the court will make a decision based on the best interests of the child. The court’s primary concern is the best interests of the child and choosing the access arrangement that is best for the child.
Meanwhile, the BC ''Family Law Act'' talks about '''guardians'''. Guardians are usually the parents of a child. (Below we explain some situations where others can be guardians.) While a child’s parents are living together and even when they separate, each parent is presumed to be the child’s guardian.  


==What does “guardianship” mean?==
Guardians have '''parental responsibilities''' for a child. Parental responsibilities under the ''Family Law Act'' is like decision-making responsibility under the ''Divorce Act''. That is, parental responsibilities mean how guardians make choices about important aspects of the children’s lives. This includes where they go to school, how they’re treated when they get sick, and if they’ll be raised in a religion. It also includes making daily decisions affecting the children, like what they wear or what they eat. Parental responsibilities can be shared between guardians or they can be given to just one guardian.
Guardianship is a term used by the ''Family Law Act''. Guardians are the people, usually parents, who are responsible for a child’s upbringing and wellbeing. Guardians exercise “parental responsibilities” and have “parenting time” with a child, which will be discussed in a moment.


==Who is a guardian?==
The time a guardian spends with a child is called '''parenting time'''. During a guardian’s parenting time, the guardian is responsible for the care of the child. They are also responsible for making decisions about day-to-day matters involving the child.
The ''Family Law Act'' says that parents who live together are presumed to be the guardians of their child, during their relationship and after they separate. A parent who never lived with his or her child is not presumed to be a guardian of the child unless:
*the parent “regularly cares” for the child;
*the person is a parent because of an assisted reproduction agreement; or
*the parent and all of the child’s guardians make an agreement that the parent will be a guardian.


Someone who is not a guardian can only become a guardian by a court order appointing him or her as a guardian or by being appointed as a guardian on a guardian’s death or incapacity.
====Contact====
Someone who isn’t a spouse or guardian can have time with a child. Under both the ''Divorce Act'' and the ''Family Law Act'', this is called '''contact'''. A grandparent or another family member might have contact with a child. So might another adult with an important role in the child’s life. A key difference is that a person with contact can’t make daily decisions about a child. A person with contact also isn’t entitled to ask for or get information about the child’s health, education, or welfare.


==How do you apply to be appointed as a guardian?==
===How decisions about parenting are made===  
Only people who aren’t already guardians because of the presumptions in the ''Family Law Act'' must apply to court to be appointed as the guardian of a child. People applying for appointment as a guardian must complete a special form of affidavit required by the rules of court. This affidavit requires you to get: a criminal records check; a protection order registry check and a records check from the Ministry for Children and Family Development; provide the details of any court proceedings that are relevant to the child’s best interests; and, provide information about the children that are and have been in your care.
{{PLSStorybox
| image = [[File:jannik.png|link=]]
| text      = “Marcie and I broke up almost a year ago. We have two kids (9 and 13) together. At first, the kids lived with each of us half the time. Now, I only see the kids on the weekends. We’ve been working with a family justice counsellor. They’ve been helping us figure things out through mediation because the kids want to see me more often.” <br>– Jannik, Cranbrook, BC
}}


==How do you appoint someone as guardian upon your death or incapacity?==
After they separate, a child’s parents may be able to reach an agreement about parental responsibilities (or decision-making responsibility under the ''Divorce Act'') and parenting time. They may decide to put this agreement into writing. This is called a '''separation agreement''' or a '''parenting agreement'''.
A guardian can appoint another person to become the guardian of his or her child upon death by will or by Form 2 of the Family Law Act Regulation. A guardian who is facing a terminal illness or a permanent mental incapacity can appoint another person to become a guardian when he or she is no longer able to act as guardian using Form 2.


A guardian cannot appoint a guardian with more parental responsibilities than those that she or he held at the time of the appointment.
If they can’t agree, the parents can try '''mediation'''. If they still can’t agree, or if mediation isn’t possible, they can ask a court or an arbitrator to decide. The court (or arbitrator) will make a decision based on what’s best for the child. That is the only consideration courts and arbitrators can take into account.  


==What do “parental responsibilities” and “parenting time” mean?==
The arrangements for parenting made in orders and agreements are called '''parenting arrangements''' in the ''Family Law Act''. Under the ''Divorce Act'' they are called a '''parenting plan'''.
Parental responsibilities is a term used by the ''Family Law Act''. It refers to guardians’ responsibility for making decisions about how the child is nurtured and raised, and the duty of making those decisions in the best interests of the child.


Parenting time is another term used by the ''Family Law Act''. The time a guardian has with a child is called parenting time. During a guardian’s parenting time, the guardian is responsible for the care of the child and decision-making about day-to-day matters involving the child.
For more, see our coverage of [https://dialalaw.peopleslawschool.ca/category/families/resolving-family-disputes/ resolving family disputes].


People who are not guardians, including parents who are not guardians, do not have parental responsibilities or parenting time.
==Common questions==


==How are parental responsibilities and parenting time decided?==
===Can a child decide who to live with?===
Parental responsibilities and parenting time are decided either by a court order or the written agreement of the child’s guardians. Where guardians must go to court, the court will make a decision based only on the best interests of the child. The court’s primary concern is the best interests of the child.
A child's views must be considered when deciding on parenting arrangements, unless it would be inappropriate to do so. However, while children have a ''voice'' in these decisions, they don’t have a ''choice''. These decisions are made by parents or, if the parents can’t decide, by a court or an arbitrator.


Parental responsibilities can be shared between two or more guardians, which usually means that they are all responsible for making decisions about the child and must make those decisions in consultation with one another. Parental responsibilities also can be allocated among guardians, so that a guardian has sole responsibility for certain kinds of decisions, like about health care or schooling, and can make those decisions without having to consult the other guardians.
If a child is old enough and mature enough, the court or arbitrator will consider what the child wants when determining parenting arrangements and contact.  


The arrangements made in an agreement or order for parental responsibilities and parenting time are known as “parenting arrangements.”
There’s no particular age at which children have a right to decide who they’ll live with. The views and preferences of all children are important. The wishes of children who are 12 and older will carry more weight. The wishes of an older teenager may be decisive.


==What is “contact”?==
===How does a court consider a child’s wishes?===
Contact is a term used by the Family Law Act. Contact is the time that someone who is not a guardian has with a child. Parents who are not guardians may have contact, as might grandparents, aunts and uncles, other family members or any one else who has an important relationship with a child.
Parents may disagree about a child’s parenting arrangements. If that’s the case, a court or an arbitrator may ask a professional to prepare a report about the child’s wishes. The professional may be a family justice counsellor, parenting coordinator, social worker, psychologist, clinical counsellor, or a lawyer with special training. Many parents also agree to have a report done privately without a court order.


==How is contact decided?==
There are two main types of reports about children's wishes:
Contact is decided the same way as parenting time – either by a court order or by the written agreement of the person with contact and the child’s guardians. When people must go to court, the court will make a decision based only on the best interests of the child. The court’s primary concern is the best interests of the child.


==Can a child decide whom to live with?==
* '''A non-evaluative views of the child report'''. This describes what a child says during an interview with the professional.  
If a child is old enough and mature enough, the judge will consider the child’s wishes when determining arrangements for custody, parenting time and contact. The importance given to the child’s views will depend on the age and maturity of the child, the reason why the child wishes to live with a particular person, and how strongly the child feels about wanting to live with that person. But there is no particular age at which children have the right to decide who they will live with. However, in general the older the child is, the more weight the court will give to the child’s wishes. Usually, the wishes of a child over age 12 are taken into consideration, and an older teenager’s wishes are likely to be decisive.
* '''An evaluative views of the child report'''. This describes what a child says ''and'' gives an opinion about the child’s needs or views. For example, how closely do the views expressed by the child match the child’s actual views? Does the child understand the consequences of their wishes? Has the child been coached to say something in particular?


==What about “needs of the child assessments”?==
The costs of these reports range from about $1,000 for non-evaluative views of the child reports to about $3,500 for an evaluative views of the child reports. A court can also ask that a family justice counsellor prepare an evaluative views of the child report for free. But these reports can take up to six months to finish.
Section 211 of the ''Family Law Act' allows the court to order an assessment, prepared by a social worker, a psychologist, a psychiatrist or another mental health professional, of:
*the wishes of a child;
*the needs of a child; and,
*the capacity of a person to meet the child’s needs.


These assessments will usually make a recommendation about the sort of parenting arrangements and contact that the assessor considers to be in the best interests of the child.
===What is a parenting assessment?===
Where parents disagree about a child’s care arrangements, a court or an arbitrator can ask for a '''parenting assessment''', sometimes called a '''section 211 report''', after the part of the ''Family Law Act'' that talks about them. These reports are prepared by family justice counsellors, social workers, psychologists, and clinical counsellors. They make recommendations about the parenting arrangements that are likely to be in the best interests of the child.  


These assessments are known as needs of the child assessments. (Under the old Family Relations Act, these were known as “section 15 reports” or “custody and access reports”.) They can cost at least $5,000. A report can also be prepared for free by a Family Justice Counsellor, but it may take eight months or longer to complete.
The report writer will look at:


==What about “views of the child reports”?==
* the needs of the child, 
A views of the child report, sometimes called a “hear the child report”, describe the child’s views about a particular issue or about how the child is experiencing his or her parents’ separation.
* the views of the child, if the child is old enough to express them, and
* the ability of the parents to meet the child’s needs.  


These reports can be prepared by a mental health professional under section 211 of the Family Law Act. Reports prepared by mental health professionals are usually evaluative, which means that the mental health professional may offer an opinion about what the child has said.
The cost of these assessments can range from $5,000 to $15,000. A judge can also ask that a family justice counsellor prepare a parenting assessment for free. Because of high demand, reports prepared by family justice counsellors can take many months to complete. Psychologists and other counsellors can write a private report faster but they are expensive.


Non-evaluative views of the child reports can be prepared under section 202 of the Act. Non-evaluative reports simply repeat what the child has told the person preparing the report, and do not offer an opinion. These reports are also prepared by mental health professionals but can also be prepared by Family Justice Counsellors or any one with special training, including a lawyer.
===Who can be a guardian of a child?===
The [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec39_smooth ''Family Law Act''] says that a child’s parents are the guardians of the child while they live together and after they separate. But, if the parents of a child did not live together after the child was born, the parent with whom the child lives is treated as the child’s guardian.


==Are orders and agreements about custody and access, and parenting arrangements and contact, final?==
A parent who has never lived with their child is not the child’s guardian unless one of the following applies:
No order or agreement about these issues is every absolutely final. Orders and agreements about custody and access, and parenting arrangements and contact, may be changed whenever there has been a significant change in circumstances of the child, including because of a change in circumstances of another person, providing that the change affects the child’s best interests and justifies changing the order or setting aside the agreement.


==Do you need a lawyer?==
* the parent regularly cares for the child,
You may need a lawyer if you’re seeking a custody order or an order about parenting arrangements in the Supreme Court. Orders about parenting arrangements can also be made in Family Court, in which case you may not need a lawyer because the court processes are simpler and more user-friendly. If you go to Family Court, most court registries will require you to take a free government-sponsored “Parenting After Separation” course before you can be heard by the court. Many people find the course to be very helpful, and you should consider taking the course whether the court requires you to take the course or not.
* there’s an agreement or court order saying that the parent is a guardian, or
* they are a parent under a written agreement providing for the child’s birth through assisted reproduction.


==Should you try to mediate or use collaborative settlement processes?==
Someone can become a guardian through a guardian’s will. Or they can be appointed as a guardian when a guardian dies or becomes incapacitated. Or they can apply to court to become a guardian.
Mediation and collaborative settlement processes are excellent ways to help parents reach an agreement on custody and access, and parenting arrangements and contact.


Mediation can help avoid a bitter court dispute – including going to court in the first place. Apart from paid, private mediators, the provincial government has trained mediators, called Family Justice Counsellors, who don’t charge for their services and are available to help couples come to an agreement about parenting. Call Service BC at 604.660.2421 in the lower mainland, 250.387.6121 in Greater Victoria or 1.800.663.7867 elsewhere in BC. Remember that an agreement drafted by a Family Justice Counsellor will have long-term consequences and may be difficult to change, so be sure to get independent legal advice before signing it. Your lawyer can also refer you to a mediator. For more information on mediation, refer to script [[Mediation and Collaborative Settlement Processes (Script 111)|111] on “Mediation and Collaborative Settlement Processes”.
===What’s involved in applying to become a guardian of a child?===
If you apply to court to become a guardian, the [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec51_smooth law in BC] says you have to give evidence for why this would be in the best interests of the child. This means:
* filling out a [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/courthouse-services/court-files-records/court-forms/family/pfa733.pdf?forcedownload=true guardianship affidavit] that provides information about any children that are or have been in your care (an affidavit is a legal document where you make statements about facts you say are true), 
* getting a criminal record check, 
* getting a record check from the child protection authorities, and 
* getting a record check from the BC government’s [https://www2.gov.bc.ca/gov/content/safety/crime-prevention/protection-order-registry protection order registry].


Collaborative settlement processes are a kind of negotiation where you and the other party, along with your lawyers, agree to work together to resolve the problems arising from your separation without going to court. Collaborative processes often involve child specialists who give advice to the parties and their lawyers about the child’s needs and how the child is experiencing their separation.
===Do I need a lawyer to work out parenting arrangements?===
You don’t need a lawyer. But you should get legal advice and representation where possible. See who can help, below.


==What should you do if the other parent won’t follow the order or agreement?==
{| class="wikitable"
The Family Law Act has special provisions for the enforcement of orders and agreements for parenting time and contact. In special circumstances, the court can also require police to help enforce these orders and agreements, however this should be a last resort only.
|align="left"|'''Options to consider'''
If you’re planning to represent yourself, consider getting legal advice about your case beforehand. Or you could explore hiring an '''unbundled lawyer''' to help coach you or help with part of your case. To find a lawyer who offers unbundled services, see [https://unbundlinglaw.peopleslawschool.ca/ unbundlinglaw.ca].
|}


If you’re afraid the other parent is about to take your children out of the country and not bring them back, see a lawyer immediately. There are special provisions in the ''Family Law Act'' that can help with this too.
===Are there options to avoid going to court?===
Yes. The ''Divorce Act'' and the ''Family Law Act'' encourage parents to resolve their family law problems out of court. You can try to work out parenting arrangements through mediation or collaborative negotiation.  


==Where can you get help or more information?==
'''Mediation''' is a process where the parents meet with a neutral person called a '''mediator'''. The mediator helps them talk to each other and find a solution they agree on. The provincial government offers couples the services of trained mediators, called family justice counsellors, for free. (In fact, at some Provincial Court locations, meeting with a family justice counsellor is one of the first steps in the court process.) Or you can hire a private mediator.  
*Refer to the “Family Justice” website of the provincial Ministry of Attorney General at [http://www.justicebc.ca/en/fam/ www.justicebc.ca/en/fam/].
*See the [[Children in Family Law Matters | Children section]] of the wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC, at .
*The laws referred in this script are available at [http://www.bclaws.ca www.bclaws.ca] or http://laws-lois.justice.gc.ca/eng/.


A '''collaborative negotiation''' approach may also be used to settle things without going to court. In collaborative negotiation you and the other parent each hire specially-trained lawyers. You and your lawyers sign an agreement saying that no one will go to court or threaten to go to court. If the collaborative process breaks down, you and the other party must hire new lawyers if you want to go to court.


[Updated November 2014]
If you’re not able to come to an agreement, you could also try '''arbitration'''. An arbitrator can’t make an agreement, but will make a decision, just like a judge.


For more on these options, see our information on [[Mediation and Collaborative Practice|mediation, collaborative negotiation, and arbitration]].


{| class="wikitable"
|align="left"|'''Some exceptions'''
There are times when mediation, collaborative negotiation, and arbitration might be inappropriate. This might be true if there has been family violence, or if someone is making threats to damage property or leave with a child.
|}


----
===Are orders and agreements about children final?===
----
No order or agreement about children is ever absolutely final. When there’s a significant change in circumstances affecting a child’s best interests, a parenting order or agreement may be changed or set aside. That is, something new must have happened since the original order or agreement was made to justify the change.


===What can I do if the other parent won’t follow a court order?===
The [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec230_smooth ''Family Law Act''] has rules about enforcing parenting and contact orders (and agreements too). How an order is enforced depends on whether it was made in Provincial Court or Supreme Court. Either court can order police to help with enforcement in special circumstances. But this is usually a last resort.


If you’re afraid the other parent is about to take your children out of the country and not bring them back, see a lawyer immediately. There are special rules in the ''Family Law Act'' and the ''Divorce Act'' that can help with this too.
{| class="wikitable"
|align="left"|'''Self-help guides'''
Legal Aid BC’s Family Law in BC website has [https://family.legalaid.bc.ca/bc-legal-system/court-orders/enforce-order-or-agreement-made-bc free step-by-step guides about enforcing orders and agreements] in Provincial Court and Supreme Court.
|}
===What if a parent wants to move after separation?===
There are rules about what happens when someone wants to move away — with or without their children — after separation. Such a move might have a significant impact on the relationship of a child with another person who has parenting time, decision-making responsibility, or contact. The law calls this type of move a '''relocation'''.
Under the ''Family Law Act'', where there is a written agreement or court order about parenting arrangements, someone who wants to relocate has to give '''60 days’ written notice'''. The notice must be given to anyone who is a guardian of the child or has contact with the child. Only guardians may object to the move. To do so, they must file a court application to stop the move '''within 30 days''' of receiving notice of the move.
Under the ''Divorce Act'', someone who wants to relocate also has to give '''60 days’ written notice'''. This [https://www.justice.gc.ca/eng/fl-df/divorce/nrf-fad.html relocation notice] must be given to anyone who has parenting time, decision-making responsibility or contact with the child under a ''Divorce Act'' order. Only someone who has parenting time or decision-making responsibility may object to the move. To do so, they must object '''within 30 days''' of receiving notice of the move by [https://www.justice.gc.ca/eng/fl-df/divorce/orf-fod.html giving written notice] or filing a court application.
Under both laws, when there has been family violence, you can ask the court for an exception to the rule that the relocating person give notice of the move.
==Who can help==
===With more information===
The wikibook ''JP Boyd on Family Law'' has extensive coverage of parenting arrangements after separation.
* [[Children_in_Family_Law_Matters|View website]]
Legal Aid BC’s '''Family Law in BC website''' has information and self-help guides on parenting and guardianship.
* [https://family.legalaid.bc.ca/children/parenting-guardianship Visit website]
===Free and low-cost legal help===
Family justice counsellors in '''Family Justice Centres''' throughout BC can help with guardianship, parenting, and related issues. Their services are free.
* Call 604-660-2421 (in the Lower Mainland)
* Call 1-800-663-7867 (toll-free)
* [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors Visit website]
Other options for legal help include legal aid, pro bono services, legal clinics, and advocates. [[Free and Low-Cost Legal Help|See our information on free and low-cost legal help]].
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Latest revision as of 23:09, 6 November 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, KC, Boyd Arbitration Chambers in March 2020.
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When parents separate, they must work out the details of how their children will be cared for. This includes decisions about guardianship, parenting arrangements, and contact. Learn about these parenting after separation issues and the laws that apply in your situation.

Alert!

This information has been updated to reflect changes to the Divorce Act that took effect on March 1, 2021, as well as new Provincial Court Family Rules that took effect on May 17, 2021.

What you should know

Two laws deal with the care of children

When parents separate, they have to make some basic decisions about their children. Where will they live? How will they make decisions about the children? How much time will they spend with each parent?

There are two laws that deal with these issues: the federal Divorce Act and BC’s Family Law Act. The Divorce Act only applies to parents who are (or used to be) married to each other. The Family Law Act applies to all parents. It applies whether the parents are:

  • married or unmarried spouses,
  • dating, or
  • not in a relationship.

Under both laws, if parents can’t agree about the care of their children, they can ask a court to decide. Under the Family Law Act, parents can also ask an arbitrator to decide. When making decisions like these, courts and arbitrators only consider the best interests of the children.

The terms used to talk about parenting after separation

As of March 1, 2021, the terms “custody” and “access” are no longer used in the Divorce Act. Instead, the Act uses terms to talk about parenting arrangements that are very much like the BC Family Law Act.

Decision-making responsibility and parenting time

Under the Divorce Act, decision-making responsibility means how married spouses make choices about important aspects of the children's lives. This includes where they go to school and how they’re treated when they get sick. It also includes what sports and other important activities they'll be involved in and if they’ll be raised in a religion. Decision-making responsibility can be shared between spouses or given to just one spouse.

Parenting time is just like it sounds. It’s the time a spouse spends with a child. Usually this is set by a schedule agreed on by the spouses or set by the court. During their parenting time, each spouse can make daily decisions about a child, such as decisions about bedtime, homework, and meals.

A spouse who has decision-making responsibility or parenting time also has the right to ask for and get information about a child’s health, education, and welfare.

Guardians, parental responsibilities, and parenting time

Meanwhile, the BC Family Law Act talks about guardians. Guardians are usually the parents of a child. (Below we explain some situations where others can be guardians.) While a child’s parents are living together and even when they separate, each parent is presumed to be the child’s guardian.

Guardians have parental responsibilities for a child. Parental responsibilities under the Family Law Act is like decision-making responsibility under the Divorce Act. That is, parental responsibilities mean how guardians make choices about important aspects of the children’s lives. This includes where they go to school, how they’re treated when they get sick, and if they’ll be raised in a religion. It also includes making daily decisions affecting the children, like what they wear or what they eat. Parental responsibilities can be shared between guardians or they can be given to just one guardian.

The time a guardian spends with a child is called parenting time. During a guardian’s parenting time, the guardian is responsible for the care of the child. They are also responsible for making decisions about day-to-day matters involving the child.

Contact

Someone who isn’t a spouse or guardian can have time with a child. Under both the Divorce Act and the Family Law Act, this is called contact. A grandparent or another family member might have contact with a child. So might another adult with an important role in the child’s life. A key difference is that a person with contact can’t make daily decisions about a child. A person with contact also isn’t entitled to ask for or get information about the child’s health, education, or welfare.

How decisions about parenting are made

Jannik.png
“Marcie and I broke up almost a year ago. We have two kids (9 and 13) together. At first, the kids lived with each of us half the time. Now, I only see the kids on the weekends. We’ve been working with a family justice counsellor. They’ve been helping us figure things out through mediation because the kids want to see me more often.”
– Jannik, Cranbrook, BC

After they separate, a child’s parents may be able to reach an agreement about parental responsibilities (or decision-making responsibility under the Divorce Act) and parenting time. They may decide to put this agreement into writing. This is called a separation agreement or a parenting agreement.

If they can’t agree, the parents can try mediation. If they still can’t agree, or if mediation isn’t possible, they can ask a court or an arbitrator to decide. The court (or arbitrator) will make a decision based on what’s best for the child. That is the only consideration courts and arbitrators can take into account.

The arrangements for parenting made in orders and agreements are called parenting arrangements in the Family Law Act. Under the Divorce Act they are called a parenting plan.

For more, see our coverage of resolving family disputes.

Common questions

Can a child decide who to live with?

A child's views must be considered when deciding on parenting arrangements, unless it would be inappropriate to do so. However, while children have a voice in these decisions, they don’t have a choice. These decisions are made by parents or, if the parents can’t decide, by a court or an arbitrator.

If a child is old enough and mature enough, the court or arbitrator will consider what the child wants when determining parenting arrangements and contact.

There’s no particular age at which children have a right to decide who they’ll live with. The views and preferences of all children are important. The wishes of children who are 12 and older will carry more weight. The wishes of an older teenager may be decisive.

How does a court consider a child’s wishes?

Parents may disagree about a child’s parenting arrangements. If that’s the case, a court or an arbitrator may ask a professional to prepare a report about the child’s wishes. The professional may be a family justice counsellor, parenting coordinator, social worker, psychologist, clinical counsellor, or a lawyer with special training. Many parents also agree to have a report done privately without a court order.

There are two main types of reports about children's wishes:

  • A non-evaluative views of the child report. This describes what a child says during an interview with the professional.
  • An evaluative views of the child report. This describes what a child says and gives an opinion about the child’s needs or views. For example, how closely do the views expressed by the child match the child’s actual views? Does the child understand the consequences of their wishes? Has the child been coached to say something in particular?

The costs of these reports range from about $1,000 for non-evaluative views of the child reports to about $3,500 for an evaluative views of the child reports. A court can also ask that a family justice counsellor prepare an evaluative views of the child report for free. But these reports can take up to six months to finish.

What is a parenting assessment?

Where parents disagree about a child’s care arrangements, a court or an arbitrator can ask for a parenting assessment, sometimes called a section 211 report, after the part of the Family Law Act that talks about them. These reports are prepared by family justice counsellors, social workers, psychologists, and clinical counsellors. They make recommendations about the parenting arrangements that are likely to be in the best interests of the child.

The report writer will look at:

  • the needs of the child,
  • the views of the child, if the child is old enough to express them, and
  • the ability of the parents to meet the child’s needs.

The cost of these assessments can range from $5,000 to $15,000. A judge can also ask that a family justice counsellor prepare a parenting assessment for free. Because of high demand, reports prepared by family justice counsellors can take many months to complete. Psychologists and other counsellors can write a private report faster but they are expensive.

Who can be a guardian of a child?

The Family Law Act says that a child’s parents are the guardians of the child while they live together and after they separate. But, if the parents of a child did not live together after the child was born, the parent with whom the child lives is treated as the child’s guardian.

A parent who has never lived with their child is not the child’s guardian unless one of the following applies:

  • the parent regularly cares for the child,
  • there’s an agreement or court order saying that the parent is a guardian, or
  • they are a parent under a written agreement providing for the child’s birth through assisted reproduction.

Someone can become a guardian through a guardian’s will. Or they can be appointed as a guardian when a guardian dies or becomes incapacitated. Or they can apply to court to become a guardian.

What’s involved in applying to become a guardian of a child?

If you apply to court to become a guardian, the law in BC says you have to give evidence for why this would be in the best interests of the child. This means:

  • filling out a guardianship affidavit that provides information about any children that are or have been in your care (an affidavit is a legal document where you make statements about facts you say are true),
  • getting a criminal record check,
  • getting a record check from the child protection authorities, and
  • getting a record check from the BC government’s protection order registry.

Do I need a lawyer to work out parenting arrangements?

You don’t need a lawyer. But you should get legal advice and representation where possible. See who can help, below.

Options to consider

If you’re planning to represent yourself, consider getting legal advice about your case beforehand. Or you could explore hiring an unbundled lawyer to help coach you or help with part of your case. To find a lawyer who offers unbundled services, see unbundlinglaw.ca.

Are there options to avoid going to court?

Yes. The Divorce Act and the Family Law Act encourage parents to resolve their family law problems out of court. You can try to work out parenting arrangements through mediation or collaborative negotiation.

Mediation is a process where the parents meet with a neutral person called a mediator. The mediator helps them talk to each other and find a solution they agree on. The provincial government offers couples the services of trained mediators, called family justice counsellors, for free. (In fact, at some Provincial Court locations, meeting with a family justice counsellor is one of the first steps in the court process.) Or you can hire a private mediator.

A collaborative negotiation approach may also be used to settle things without going to court. In collaborative negotiation you and the other parent each hire specially-trained lawyers. You and your lawyers sign an agreement saying that no one will go to court or threaten to go to court. If the collaborative process breaks down, you and the other party must hire new lawyers if you want to go to court.

If you’re not able to come to an agreement, you could also try arbitration. An arbitrator can’t make an agreement, but will make a decision, just like a judge.

For more on these options, see our information on mediation, collaborative negotiation, and arbitration.

Some exceptions

There are times when mediation, collaborative negotiation, and arbitration might be inappropriate. This might be true if there has been family violence, or if someone is making threats to damage property or leave with a child.

Are orders and agreements about children final?

No order or agreement about children is ever absolutely final. When there’s a significant change in circumstances affecting a child’s best interests, a parenting order or agreement may be changed or set aside. That is, something new must have happened since the original order or agreement was made to justify the change.

What can I do if the other parent won’t follow a court order?

The Family Law Act has rules about enforcing parenting and contact orders (and agreements too). How an order is enforced depends on whether it was made in Provincial Court or Supreme Court. Either court can order police to help with enforcement in special circumstances. But this is usually a last resort.

If you’re afraid the other parent is about to take your children out of the country and not bring them back, see a lawyer immediately. There are special rules in the Family Law Act and the Divorce Act that can help with this too.

Self-help guides

Legal Aid BC’s Family Law in BC website has free step-by-step guides about enforcing orders and agreements in Provincial Court and Supreme Court.

What if a parent wants to move after separation?

There are rules about what happens when someone wants to move away — with or without their children — after separation. Such a move might have a significant impact on the relationship of a child with another person who has parenting time, decision-making responsibility, or contact. The law calls this type of move a relocation.

Under the Family Law Act, where there is a written agreement or court order about parenting arrangements, someone who wants to relocate has to give 60 days’ written notice. The notice must be given to anyone who is a guardian of the child or has contact with the child. Only guardians may object to the move. To do so, they must file a court application to stop the move within 30 days of receiving notice of the move.

Under the Divorce Act, someone who wants to relocate also has to give 60 days’ written notice. This relocation notice must be given to anyone who has parenting time, decision-making responsibility or contact with the child under a Divorce Act order. Only someone who has parenting time or decision-making responsibility may object to the move. To do so, they must object within 30 days of receiving notice of the move by giving written notice or filing a court application.

Under both laws, when there has been family violence, you can ask the court for an exception to the rule that the relocating person give notice of the move.

Who can help

With more information

The wikibook JP Boyd on Family Law has extensive coverage of parenting arrangements after separation.

Legal Aid BC’s Family Law in BC website has information and self-help guides on parenting and guardianship.

Free and low-cost legal help

Family justice counsellors in Family Justice Centres throughout BC can help with guardianship, parenting, and related issues. Their services are free.

  • Call 604-660-2421 (in the Lower Mainland)
  • Call 1-800-663-7867 (toll-free)
  • Visit website

Other options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.

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Families & Children
Family Relationships
Divorce & Separation
Children
Resolving Family Disputes
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