Difference between revisions of "Children and Parenting after Separation"

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{{JPBOFL Start Chapter
|Related = [[Parenting after Separation]]{{·}}[[Guardianship, Parenting Arrangements and Contact|Guardianship, Parenting and Contact]]
{{·}}[[Custody and Access]]{{·}}[[Changing Family Law Orders and Agreements Involving Children|Making Changes]]{{·}}[[Estranged and Alienated Children]]
}}
{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
|ChapterEditors = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]]
|ChapterEditors = [[Mary Mouat|Mary Mouat, KC]] and [[Samantha Rapoport]]
}}
}}
{{LSSbadge
{{LSSbadge
| resourcetype = fact sheets on
| resourcetype = fact sheets on
| link = [https://www.clicklaw.bc.ca/resource/1608 Access]''','''[https://www.clicklaw.bc.ca/resource/1891 Custody]''', and'''<br/>[https://www.clicklaw.bc.ca/resource/1631 Guardianship, parenting time & <br/>parental responsibilities]
| link = [https://www.clicklaw.bc.ca/resource/1608 Access]''','''[https://www.clicklaw.bc.ca/resource/1891 Custody]''', and'''<br/>[https://www.clicklaw.bc.ca/resource/1631 Guardianship, parenting time & <br/>parental responsibilities]
}}When a couple involved in a family law dispute have children, they must make decisions about four important issues:  
}}When parents separate, they have to make decisions about four important issues: where the children <span class="noglossary">will</span> live; how parenting decisions <span class="noglossary">will</span> be made; how often each of them <span class="noglossary">will</span> see the children; and, how the children <span class="noglossary">will</span> be provided for. This chapter reviews the first three of these issues in detail. The fourth issue is covered in the [[Child Support]] chapter.
 
* where the children <span class="noglossary">will</span> live,
* how parenting decisions <span class="noglossary">will</span> be made,
* how often each person <span class="noglossary">will</span> see the children, and
* how the children <span class="noglossary">will</span> be provided for.  
 
This chapter reviews the first three of these issues in detail. The fourth issue is covered in the [[Child Support]] chapter.


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


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


* [[Parenting after Separation|parenting after separation]],  
* the [[The Rights of Children and Youth in Family Law Matters|rights of children and youth]] in family law disputes between their parents,
* [[Guardianship, Parenting Arrangements and Contact|guardianship and contact]],  
* [[Parenting Apart|parenting apart]],  
* [[Custody and Access|custody and access]],  
* the basic principles of [[Basic Principles of Parenting after Separation|parenting after separation]], including guardianship, parenting arrangements and contact under the ''Family Law Act'', and parenting arrangements and contact under the ''Divorce Act'',
* [[Changing Family Law Orders and Agreements Involving Children|making changes to orders and agreements involving children]], and  
* what happens when a parent wants to [[Moving Away after Separation|move away after separation]], with or without a child,
* the problem of [[Estranged and Alienated Children| estrangement and alienation]].
* [[Children Who Resist Seeing a Parent|children who resist seeing a parent]] after separation, and  
 
* [[Changing Family Law Orders, Awards and Agreements Involving Children|making changes]] to orders, awards and agreements about children.
Other legal issues relating to children, such as family violence, naming, and adoption are discussed in other sections.


<span style="color:#D2691E">'''Important changes'''</span> <br />
Other legal issues relating to parenting and parenting after separation, including family violence, naming children, and adopting children are discussed in other sections of this resource.
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.
   
   
==Introduction==
==Introduction==


There are two pieces of legislation that deal with issues about the care of children when parents separate: the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]''. Both laws allow parents and other people to apply for orders about where the children will live and how much time each person will have with the children if they can't make an agreement about these issues themselves. Whenever the court is asked to make a decision about issues like these, the court's primary concern is the children and the sort of arrangements that will be in their best interests. Most of the sections in this chapter talk about how the court makes these decisions and the laws that apply to parents (or other people responsible for children's care) in different situations.  
There are two laws that talk about parenting after separation: the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]''. Both laws allow parents and other people to apply for orders about where the children will live and how much time each person will have with the children if they can't make an agreement about these issues themselves. Whenever the court is asked to make a decision about issues like these, the court's only concern is the wellbeing of children and the sort of parenting arrangements that are most likely to be in their best interests. The other [[Parenting after Separation]] section in this chapter talks about how the court makes these decisions and the laws that apply to parents and other people responsible for children's care in different situations.  
 
The [[Parenting Apart]] section talks about some very important issues that don't involve legislation or the court, but are equally important:


The [[Parenting after Separation]] section talks about some very important issues that don't involve legislation or the court, but are equally important:
* how to protect children from conflict between their parents,  
* how to protect children from the conflict between their parents,  
* how to develop parenting plans, and  
* how to develop parenting plans, and  
* how to locate resources that are available to separating and separated parents.  
* how to locate resources for separating and separated parents.
 
When parents separate, there's a lot more at stake than just where the children are going to be living tomorrow. Parents have an obligation to think in the long-term, and take a perspective that looks years down the road. How is their conflict going to affect their children? How can both parents maintain meaningful roles in their children's lives? How will the children adapt to the separation? When the children are older and look back on their childhood, what will they think of their parents' separation? And, perhaps most importantly, how can the children best be helped to grow and mature into adults with families of their own?
 
There's a lot more involved in making decisions about parenting after separation than what you'll find in the ''Divorce Act'' and the ''Family Law Act''. The romantic relationship between the parents may be over, but they'll always be parents, no matter the nature of their relationship with each other. Separated parents have a duty to their children to try to overcome their differences and always put their children first, no matter how hard it is for them to cope with the emotional and legal issues that arise from the breakdown of their relationship with each other.


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


There's a lot more to dealing with the care of children after separation than what you'll find in the ''Divorce Act'' and the ''Family Law Act''. The romantic relationship between the parents may be over, but they'll always be parents no matter the nature of their relationship with each other. Parents owe a positive duty to their children to overcome their differences and always put their children first, no matter how hard it is to cope with the emotional and legal issues that arise from their separation.
For married spouses, the law about parenting after separation is governed by the federal ''Divorce Act'' and the provincial ''Family Law Act''. Although married spouses can ask for orders under both the ''Divorce Act'' and the ''Family Law Act'', it's usually best to just pick one act or the other to deal with issues about parenting after separation.


===The ''Divorce Act'' and the ''Family Law Act''===
For unmarried spouses and other unmarried parents, the only law that applies is the ''Family Law Act''.


For married spouses, the law about the care of children after separation is governed by the federal ''Divorce Act'' as well as the provincial ''Family Law Act''. For unmarried spouses and other unmarried couples, the only law that applies is the ''Family Law Act''. Although married spouses can ask for orders under both the ''Divorce Act'' and the ''Family Law Act'',  it's usually best to pick one Act or the other to determine issues related to the care of children because the two Acts approach the care of children with different attitudes and use different language.
Only the Supreme Court can deal with claims about parenting after separation under the ''Divorce Act''. Both the Supreme Court and the Provincial Court can deal with claims about parenting under the ''Family Law Act''.


If parties disagree over which act applies, be prepared to understand what ''paramountcy'' is. The doctrine of paramountcy says that provincial laws must give way to federal laws if there is a conflict between the two, even if both laws are otherwise valid and even if either could apply. There are a number of cases that consider which of these two Acts should apply and how they work together. A good summary is found in ''[http://canlii.ca/t/gf1gz Jirh v. Jirh]'', 2014 BCSC 1973. Another good summary is found in [http://canlii.ca/t/g6700 ''B.D.M. v. A.E.M.''], 2014 BCSC 453.
====The ''Divorce Act'' and decision-making responsibility and parenting time====


While both the ''Divorce Act'' and the ''Family Law Act'' speak about the best interests of children, the ''Divorce Act'' contains the concept of ''maximum contact'' (between the child and both parents), that is not included in the ''Family Law Act''. Maximum contact is not a concept that is included in the ''Family Law Act''; in fact, the ''Family Law Act'' says that there is no particular parenting plan or arrangement that “is presumed to be in the best interests of a child.
The ''Divorce Act'' talks about parenting after separation in terms of married spouses who have "decision-making responsibility" for their children and have "parenting time" with their children. The ''Divorce Act'' started using this language on 1 March 2021. Before then, the ''Divorce Act'' talked about married spouses who had "custody" of their children and "access" to their children. The new language focuses more on the interests of children than the rights of parents, and is very similar to the language used by the ''Family Law Act''.


<span style="color:#D2691E">'''Important changes'''</span> <br />
''Decision-making responsibilities'' are the responsibilities parents have to make important decisions on behalf of their children, about things like where the children go to school, how they're treated when they get sick and which sorts of extracurricular activities they'll participate in. Under the old ''Divorce Act'', people with custody had the responsibility for making decisions like these. Decision-making responsibility under the ''Divorce Act'' is a lot like "parental responsibilities" under the ''Family Law Act''. (People other than married spouses may be able to ask for decision-making responsibilities when there's already a court proceeding under the ''Divorce Act''.)
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.  


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 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.
''Parenting time'' is the schedule of the time that each parent has with their children. Under the old ''Divorce Act'', we talked about the children's schedule in terms of "access," but "access" only referred to the schedule of the parent who saw the children the least. Parenting time under the ''Divorce Act'' means almost exactly the same thing as "parenting time" under the ''Family Law Act''. (People other than married spouses may be able to ask for parenting time when there's already a court proceeding under the ''Divorce Act''.)


The changes to the ''Divorce Act'' also give judges a long list of best-interests factors to take into consideration when making decisions about children. 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.
A person who has decision-making responsibilities or parenting time is entitled to get information about the education, health and wellbeing of their children from anyone who has that information. A person who has parenting time is also entitled to make day-to-day decisions about the children during their parenting time, including emergency decisions.  


====Custody and access====
Orders about decision-making responsibilities and parenting time are called "parenting orders." Agreements about decision-making responsibilities and parenting time are called "parenting plans."


The ''Divorce Act'' talks about the care of children in terms of ''custody'' and ''access''. Custody is about the right to have the child with you and the right to make decisions about how the child is cared for and raised. Access is about the child's schedule of time with their parents. A parent who has access but doesn't have custody is still entitled to have information about the health, education, and well-being of the child.
If you have an old agreement or order that talks about custody and access, you don't need to get a new agreement, award or order. What you need to do is understand how the new language applies to your agreement, award or order:


<span style="color:#D2691E">'''Important changes'''</span> <br />
*'''Custody:''' If you have custody of your children, whether you had sole, joint or shared custody of your children, you now have ''decision-making responsibilities'' for your children. However, if your agreement or order limited the sort of decisions you could make on behalf of your children, those limits still apply.
Under the changes to the ''Divorce Act'', "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''.
*'''Access with custody:''' If you have custody of your children and access to your children, you and their other parent now have ''parenting time'' with your children and ''decision-making responsibilities'' for your children. The time the children are with you is now your parenting time, and the time the children are with their other parent is the other parent's parenting time. However, if your agreement or order limited the sort of decisions you could make on behalf of your children, those limits still apply.
*'''Access without custody:''' If you have access to your children but not custody of your children, you have ''parenting time'' with your children but you don't have any ''decision-making responsibilities'' for your children.  


====Guardianship and parental responsibilities====
It's important to know that the language in the updated ''Divorce Act'' doesn't give anyone any more rights than they had before.


The ''Family Law Act'' talks about people who are ''guardians''. Guardians are usually, but not always, the parents of a child. They can include people who are parents because of an assisted reproduction agreement. Guardians generally, but not always, have ''parental responsibilities'' for a child, which means that they can make decisions for and about a child. The decisions that guardians make about a child must be in that child's best interests.
====The ''Divorce Act'' and contact====


A parent who isn't a guardian can become a guardian by an agreement signed by all of the child's guardians. However, if the parent and the guardians can't agree, the parent will have to apply to court to be appointed as a guardian.
"Contact" is the time that people other than married spouses have with children. People other than married spouses can ask for contact with children when there's already a court proceeding between the spouses under the ''Divorce Act''. Contact under the ''Divorce Act'' means almost exactly the same thing as "contact" under the ''Family Law Act''.


Someone who isn't a parent can usually only be appointed as the guardian of a child by a court order.
The court can make orders about contact when the children's parents are already involved in a court proceeding under the ''Divorce Act.''


====Parenting time and contact====
====The ''Family Law Act'' and guardianship, parental responsibilities and parenting time====


Under the ''Family Law Act'', a guardian's time with a child is called ''parenting time''. During a guardian's parenting time, the guardian is responsible for the care of the child and is entitled to make basic day-to-day decisions for the child.
The ''Family Law Act'' puts the emphasis on people who are ''guardians'', rather than on people who are ''parents''. Guardians are usually, but not always, the parents of a child. A child's guardians might also include:


The schedule of a child's time with someone who isn't a guardian is called ''contact''.
*people who are parents because of an assisted reproduction agreement,
*people other than parents who are appointed by the court as guardians, and
*people who are appointed by a guardian as guardians when the appointing guardian dies or becomes too sick to perform the responsibilities of a guardian.
 
Guardians have "parental responsibilities" for their children and have "parenting time" with their children.
 
''Parental responsibilities'' are the responsibilities guardians have for making important decisions on behalf of their children, about things like where the children go to school, how they're treated when they get sick and which sorts of extracurricular activities they'll participate in. Only guardians can have parental responsibilities. Parental responsibilities under the ''Family Law Act'' are a lot like "decision-making responsibility" under the ''Divorce Act''.
 
''Parenting time'' is the schedule of the time that each guardian has with their children. Only guardians can have parenting time. Parenting time under the ''Family Law Act'' means almost exactly the same thing as "parenting time" under the ''Divorce Act''.
 
A guardian who has parental responsibilities is entitled to get information about their children, including information about the children's education and health. A guardian who has parenting time is also entitled to make day-to-day decisions about the children, including emergency decisions, and has the care, control and supervision of the children during their parenting time.
 
Agreements, awards and orders about parental responsibilities and parenting time are called "parenting arrangements."
 
====The ''Family Law Act'' and contact====
 
"Contact" is the time that people other than guardians have with children, including the time of parents who are not guardians. Contact under the ''Family Law Act'' means almost exactly the same thing as "contact" under the ''Divorce Act''.


===The best interests of the children===
===The best interests of the children===


Whenever the court considers issues involving children, its first and foremost concern is the best interests of the children, not whatever the particular wishes of a parent, no matter how well-intentioned, might be. It's not about you; it's about your kids. As a result, in any application concerning children you must show that the outcome you're looking for is the outcome that is in your children's best interests.
Whenever the court considers issues involving children, its first and foremost concern is the best interests of the children, not whatever the particular wishes of a parent might be, no matter how well-intentioned that parent is. It's not about you; it's about your kids. As a result, in any application concerning children you must show that the outcome you're looking for is the outcome that is in your children's best interests.
 
Sections 16.1 to 16.6 of the ''[[Divorce Act]]'' are about parenting orders and contact orders. Section 16 is about the best interests of children and says this:
 
<blockquote><tt>(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.</tt></blockquote>
<blockquote><tt>(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.</tt></blockquote>
<blockquote><tt>(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including</tt></blockquote>
<blockquote><blockquote><tt>(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the history of care of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) any plans for the child’s care;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any family violence and its impact on, among other things,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.</tt></blockquote></blockquote>


Section 16 of the ''[[Divorce Act]]'' is about custody and access and says this:
If family violence is present, and is a factor under section 16(3)(j), section 16(4) provides a list of additional factors to help the court assess the impact of the family violence:


<blockquote><tt>(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.</tt></blockquote>
<blockquote><tt>(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:</tt></blockquote>
<blockquote><blockquote><tt>(a) the nature, seriousness and frequency of the family violence and when it occurred;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the physical, emotional and psychological harm or risk of harm to the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) any compromise to the safety of the child or other family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) any other relevant factor.</tt></blockquote></blockquote>


Section 37 of the ''[[Family Law Act]]'' is titled "Best interests of child" and goes into more detail than the ''Divorce Act'' about what children's ''best interests'' means:
Part 4 of the ''[[Family Law Act]]'' is about parenting arrangements and contact orders. The parts of the ''Family Law Act'' that talk about children's best interests and family violence are very similar to section 16 of the ''Divorce Act''. Section 37 of the ''Family Law Act'' is about the best interests of children and says this:


<blockquote><tt>(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and '''the court must consider the best interests of the child only.'''</tt><br/>[emphasis added]</blockquote>
<blockquote><tt>(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.</tt></blockquote>
<blockquote><tt>(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:</tt></blockquote>
<blockquote><tt>(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the child's health and emotional well-being;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(a) the child's health and emotional well-being;</tt></blockquote></blockquote>
Line 106: Line 141:
<blockquote><tt>(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.</tt></blockquote>
<blockquote><tt>(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.</tt></blockquote>


In making decisions about custody and access under the ''Divorce Act'', or parental responsibilities, parenting time, and contact under the ''Family Law Act'', the court will take into <span class="noglossary">account</span> a whole range of factors, including some of the following:
If family violence is present, and is a factor under sections 37(2)(g) and 37(2)(h), section 38 provides a list of additional factors to help judges and arbitrators assess the impact of the family violence:
 
<blockquote><tt>For the purposes of section 37 (2) (g) and (h) [best interests of child], a court must consider all of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the nature and seriousness of the family violence;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) how recently the family violence occurred;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the frequency of the family violence;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) whether the family violence was directed toward the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) whether the child was exposed to family violence that was not directed toward the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) any other relevant matter.</tt></blockquote></blockquote>
 
As a result of these sections, when the court has to make orders about decision-making responsibilities, parenting time and contact under the ''Divorce Act'', or parental responsibilities, parenting time and contact under the ''Family Law Act'', it must take into <span class="noglossary">account</span> a whole range of factors, including:


*What are the child's views and preferences, assuming the child is old enough to express them?
*Who looked after the child most of the time during the marriage?
*Who looked after the child most of the time during the marriage?
*Does the child have a stronger bond with one parent than the other?
*Does the child have a stronger bond with one parent than the other?
*How much will each parent work to encourage the child to spend time with the other parent?
*How much will each parent work to encourage the child to spend time with the other parent, and support the child's relationship with the other parent?
*What plans do the parents have to look after and care for the child?
*What plans do the parents have to look after and care for the child into the future?
*How well can the parents cooperate and communicate with each other?
*How well can the parents cooperate and communicate with each other?
*How will the order proposed by the applicant affect the child?
*How will the proposed order affect the child?
*Will the proposed order be in the child's long-term best interests?
*Is the proposed order in the child's long-term best interests?
*Will the proposed order disrupt the child's present life? Is there an established status quo that the child has already settled into?
*Will the proposed order disrupt the child's present life? Is there an established routine, a ''status quo'', that the child has already settled into?
*Will the proposal disrupt the child's schooling, or take the child away from their friends and family?
*Will the proposal disrupt the child's schooling, or reduce the child's time with their friends and family?
 
*Has there been family violence, and how has the family violence impacted the family and the wellbeing of the child?
You should bear in mind these quotes from Mr. Justice Spencer in ''[http://canlii.ca/t/1dll3 Tyabji v. Sandana]'', 1994 CanLII 410 (BC SC), a 1994 decision of the British Columbia Supreme Court:
 
<blockquote>"Custody is not awarded in any sense to punish the parent who is deprived of it. There is no contest between parents to see who most deserves the children nor who was the more responsible for the break-up of the family unit."</blockquote>
<blockquote>"Custody is a placement of the children with the person who, in the court's judgment, presents that prospect of care and upbringing which is in the best interests of the children."</blockquote>
 
<span style="color:#D2691E">'''Important changes'''</span> <br />
Under the changes to the ''Divorce Act'', judges now have a long list of best-interests factors to take into consideration when making decisions about children. 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.
 
===Custody and guardianship after separation===
 
Under section 39 of the ''[[Family Law Act]]'', while parents are living together and after they separate, both of them are presumed to be the guardians of their children. These parents are guardians in fact and in law and do not need a court order to give them guardianship of their children. Other people who are presumed to be guardians are:
 
#people who are parents under an assisted reproduction agreement, and
#a parent who has never lived with the other parent but "regularly cares" for their child.
 
The ''[[Divorce Act]]'' does not make any presumptions about who has custody of the children after separation.
 
==Legal concepts about the care of children==
 
===Custody and access under the ''Divorce Act''===
 
Custody is about the right to have the child with you and the right to make decisions about how the child is raised. Custody can be awarded to one person, called ''sole custody'', or it can be shared between two parents, usually called ''joint custody''.
 
A parent who has sole custody of a child is the parent in whose household the child lives for the majority of the time.
 
When parents have joint custody, both parents have the right to the day-to-day care of the child, although the child may spend more time at the home of one parent than the other; sometimes a lot more time. Parents can have joint custody even when one of them only sees the child on the weekends or even when the parents live in different provinces. There is no connection between having joint custody and the amount of time each parent has with the child.
 
Access is the schedule of the child's time between their parents.
 
It is very important to understand that a parent's access rights to a child are entirely separate from that parent's obligation to pay child support. Child support is not a fee paid or charged to see one's child. It is never appropriate to withhold access because a parent missed a child support payment, nor is it ever appropriate to stop paying child support because access has been withheld. The courts do not look kindly on parents who have engaged in this sort of conduct.
 
<span style="color:#D2691E">'''Important changes'''</span> <br />
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. 
 
===Custody under the Child Support Guidelines===
 
The [[Child Support Guidelines]] (often simply called the ''Guidelines'') is a regulation to the ''[[Divorce Act]]'' that has been adopted by almost every province, including British Columbia. The Guidelines talks about how child support should be calculated, but along the way it also talks about how the children's time is shared between their parents, since that can have an impact on the calculation of child support.
 
Parents have ''split custody'' of their children, under section 8 of the Guidelines, where each spouse has custody of one or more children. So, if there are two parents and two children, and each parent has one child living with them most of the time, there is a split custody arrangement. If there are four children, and the oldest three live with their dad most of the time, but the youngest child lives with his mom most of the time, this is also a split custody arrangement. This sort of arrangement is pretty rare because it means that siblings will be separated from each other for significant periods of time. Parents can agree to split custody, or this arrangement can be ordered where the court finds good evidence that having the children live apart is in their best interests. This might be the case when the children don't get along with each other and are constantly fighting, or where it can be proved that one or more but not all of the children will be better off with the other parent.
 
Parents have ''shared custody'', under section 9 of the Guidelines, when the children spend an equal or almost equal amount of time in each of the parents' homes. The court recognizes that an arrangement that children live with a parent at least 40% of the time is a shared custody arrangement. This sort of arrangement is becoming increasingly common.
 
<span style="color:#D2691E">'''Important changes'''</span> <br />
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'' and "shared custody" is now known as ''shared parenting time''.
 
===Guardianship under the ''Family Law Act''===
 
The ''[[Family Law Act]]'' doesn't talk about custody. Instead it talks about the responsibilities and duties of people who are ''guardians''. Generally, parents are guardians. However, not all parents are guardians and a person other than a child's parent can be that child's guardian.
 
A parent who has never lived with a child can only be a guardian by agreement with the other parent; by ''regularly caring for'' the child; or, by court order.
 
Courts have interpreted "regularly cares for" as meaning more than occasional visits.
 
There is a case from the BC Court of Appeal, [http://canlii.ca/t/gj15z ''A.A.A.M. v. BC''], 2015 BCCA 220, which found that when the Ministry of Children and Family Development controlled how often a parent could see their child, it was unfair to say that parent had not regularly cared for the child. The Court of Appeal in this case found that a parent’s intention to regularly care for a child who was in the care of the Ministry was enough to make that parent a guardian.
 
====Parental responsibilities====
 
The actual job of parenting is called the exercise of ''parental responsibilities''. All guardians and the courts must exercise parental responsibilities and decision-making in the best interests of children.
 
When parents are living together, they each exercise all parental responsibilities. For instance, either parent may say “yes” or “no” to a play date or either parent may take the child to the dentist, doctor, or school.
 
When parents separate, they can continue to share all parental responsibilities either with or without a written agreement.
 
If the parents can’t agree on how to share parental responsibilities, the courts will make orders regarding parental responsibilities. These orders can be general or specific. Sometimes a court will order that the parents are guardians and will share the parental responsibilities as they agree. If necessary, the court can make very clear orders regarding who holds what parental responsibilities and when and how those parental responsibilities will be exercised.
 
Being a guardian does not mean that you will have specific parental responsibilities or, in fact, any parental responsibilities.
 
Not all guardians will have the same parental responsibilities.
 
A list of parental responsibilities are set out in section 41 of the ''Family Law Act'', as follows:
 
<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>


<span style="color:#D2691E">'''Important changes'''</span> <br />
If you are asking for an order or award about parenting after separation, it is very important that you have read and understand the best-interests factors, and that you think about how you can give evidence to the court about the different factors.
Under the changes to the ''Divorce Act'', "custody" is now known as ''decision-making responsibility''. Decision-making responsibility under the ''Divorce Act'' means the same thing as parental responsibilities under the ''Family Law Act''.


====Parenting time====
===Children's experiences of separation===


The schedule of a child's time between guardians is called ''parenting time''. Unless the allocation of [[parental responsibilities]] has been limited by an agreement or court order, during a guardian's parenting time, the guardian is responsible for the care of the child and may make day-to-day decisions about the child's care.
The end of an important relationship is always difficult for parents. It can be just as difficult, if not worse, for their children. How children cope with the end of their parents' relationship has to do with two things: the age and maturity of the children, and how their parents manage the breakdown of their relationship.  


Like all decisions regarding children, the allocation of parenting time is based on a child’s best interests. the ''Family Law Act'' says that there is no particular parenting plan or arrangement that “is presumed to be in the best interests of a child.” 
Let's move away from the law for a bit and talk about how children experience the separation of their parents. This is an important subject that we'll return to in the [[Parenting_Apart | Parenting Apart]] and [[Children_Who_Resist_Seeing_a_Parent | Children Who Resist Seeing a Parent]] sections of this chapter.  


Parents should not assume that a week on/week off schedule is what is in the best interests of their children, nor should parents assume that this type of parenting schedule ''isn’t'' in the best interests of their children. The ''Family Law Act'' reminds parents and the court that each child and family is unique and there is no such thing as a one size fits all parenting plan.
Children don't see things in terms of guardianship, parental responsibilities and parenting time when their parents' relationship ends. All they know is that something has gone wrong. Their parents are yelling at each other a lot, and then, one day, one of them isn't there anymore. Very young children won't understand these adult problems. Children who are in primary school will have a better idea, since they'll have friends whose parents have separated and others whose parents were never together in the first place. Tweens and teens may have a more grown-up grasp of things, as they'll likely have lost relationships of their own and can appreciate the idea that their parents' relationship has also ended. How children cope with their parents' separation changes as they grow older and more mature and gain more life experience.


It is also very important to understand that a guardian's parenting time with the children is entirely separate from their obligation to pay child support. Child support is not a fee paid or charged to see a child. It is never appropriate to withhold parenting time because a guardian missed a child support payment, nor is it ever appropriate to stop paying child support because parenting time has been withheld. The courts do not look kindly on guardians who have engaged in this sort of conduct.
Things are a lot different for parents. A significant, often lengthy relationship has ended, and in the midst of all of the emotions that go along with that — grief, anger, jealousy, love, and loss — they suddenly find themselves opposed in interest to the person they once loved. They might also find themselves having to deal with some extremely difficult legal issues about some of the things that are most important to them, like their children. It's even worse when parents wind up fighting about these things in court.


=== Examples of Parenting Arrangements ===
Litigation can have a very profound impact on people. At its core, litigation is an adversarial process. Each parent is fighting the other in <span class="noglossary">order</span> to "win," and where there's a winner there's always a loser. This sort of approach to resolving disputes often polarizes parents and encourages them to take extreme positions. In circumstances like these, it can be easy to forget how important it is that the children maintain a positive, loving relationship with each of their parents. It's also easy for each parent's view of the other to become clouded by hatred, malice and spite, to the point where nothing the other parent can do is ever right. Attitudes like these are almost impossible to shield from children. Whether intentionally or unintentionally, the children are inevitably exposed to these negative views which, without intervention, can come to colour the children's own views of the other parent.


====Parallel parenting or silo parenting====
Of course, lots of parents are able to separate like, well, adults. They get counselling when counselling is required, and sometimes get that counselling together. They're mature, treat each other with courtesy and respect for the most part, and acknowledge each other's strengths as people and as parents. These parents don't have a lot of conflict from which the children need to be protected, and how they resolve disagreements can become a helpful model for the children when they have to address problems of their own.


''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, ''[http://canlii.ca/t/1jptk J.R. v. S.H.C.]'', 2004 BCPC 0421, discusses the concept of parallel parenting at length:
====The impact of separation by age====


*A guardian assumes complete responsibility for the children when they are with them.
How children experience the separation of their parents depends not only on the level of conflict between their parents, but also on their age, stage of development and maturity. '''Infants''' won't understand what's going on when their parents separate, but they will be aware of anger and hostility and be distressed if they're in the middle of yelling and fighting. (Don't think that your baby isn't impacted by your arguments just because they don't understand what you're saying!) They'll also be aware of the absence of a parent if one of them moves out. For children of this age, it's particularly important that the parent who's moved out sees the children frequently, usually for shorter periods of time.
*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 ''[http://canlii.ca/t/g8rp5 Sodhi v. Sodhi]'', 2014 BCSC 1622.
'''Toddlers''' will also be aware that a parent is missing, but won’t understand why. They are likely to experience anxiety from the change in their home environment, and may have setbacks in their development. A toddler who has been potty trained, for example, may need pull-ups again. Any lost milestones, however, will eventually be regained. As with infants, it's really important that the parent who's moved out sees the children frequently. However, these children will be able to spend longer periods of time with the parent who's moved out, possibly including overnights.  


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.
'''Preschoolers''' will know that a parent is missing, however their understanding of why the parent is missing will be fuzzy. Children of this age are used to being the centre of attention and may come to believe that something they did caused the separation, and feel guilty as a result.


Parallel parenting is not a term you will find in the ''Family Law Act'' or in the ''Divorce Act''.
'''Children between the ages of 6 to 8''' will have a better grasp of what's going on. These children are getting much better at expressing their feelings, but, now that they're in a social environment with other kids at school, they're also learning to hide and mask their feelings, to lie when lying is useful, and to say things that they think other people want to hear. It can be difficult to know exactly how these children are dealing with their parents' separation.  


====Birdnesting====
On the other hand, '''children aged 9 to 12''' are usually angry about their parents' separation and its impact on their lives. They may interpret the separation of their parents as also a rejection of themselves, usually by the parent who's moved out.


''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.
'''Teenagers''' will have a much more adult understanding of their parents' separation and often appreciate why their parents' relationship didn't work out. However, while teenagers are developing important skills like empathy and have a deepening appreciation of the complexities of interpersonal relationships, they often develop a moral compass that's rigid and uncompromising. They are likely to blame their parents for separating, and the upheaval in their personal lives, especially if it means that they've had to move or change schools. Teenagers can be highly judgmental toward the parent they see as responsible for the separation.


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 bad news about separation====


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.
Separation is difficult for all children, no matter how well adjusted they and their parents might be. At the most basic level, the separation of a child's parents produces a tremendous change in their family; ever since they can remember, both parents were there and present in their lives, and then, one day, that changes. If that fundamental bedrock feature of their lives can change, what else can change? Anxiety, anger and frustration are pretty understandable responses.


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''.
Unfortunately, the social science about the impact of separation shows that children who have experienced the separation of their parents are at high risk of depression, self-harming behaviours, falling behind in school and dropping out of school, promiscuity and pregnancy as teens, misuse of drugs and alcohol, eating disorders, and a bunch of other things. They're also at higher risk of separation and divorce in their own relationships as adults. However, social science also tells us that the impact of parental conflict on children is even worse than the impact of separation. You sometimes hear people in unhappy relationships talking about how they're "staying together for the kids." That's an important point, and shows that these people have placed their children's wellbeing and happiness above their own, but if these people are engaged in high levels of conflict, staying together may be worse for the children than separating.


===Contact under the ''Family Law Act''===
====The good news about separation====


Under the ''Family Law Act'', someone who is not a parent or guardian can have ''contact'' with a child. When children are spending time with friends and extended family, they are having ''contact'' with these people. Agreements and court orders can formalize that contact.
While it's true that separation has an important impact on children of all ages, the good news is that parents can mitigate the likelihood of negative outcomes, like the children falling behind and school and the other things just mentioned. In fact, handling a separation well can help children adjust to the change and even help them develop resiliency. It's important to know that parents' behaviour during their separation can have a huge impact on the children's relationships with each of them, and on the children's expectations for their own future relationships in terms of trust, intimacy and closeness. As a result, it's important to minimize conflict and choose dispute resolution processes — and lawyers! — that promote cooperation and discourage conflict.  


Someone with contact does not have any parental responsibilities for the child, such as the responsibility for day-to-day decision-making concerning the child.
It's also important for parents to recognize when they need help. It often takes longer than people think to adjust to separation, and it's hard for children to adjust to the separation when their parents haven't adjusted themselves. A prominent lower mainland counsellor describes separation and divorce as a wound that must be treated properly in order to heal, and will eventually infect other areas of our lives if it's not treated and is allowed to fester. Proper treatment can help parents cope better with their separation, which in turn will help the children cope better with their parents' separation.


Contact can be as limited as phone calls or Skype visits or as broad as overnights, weekends, or holidays. A person’s contact with a child may also be supervised or monitored. Like all decisions about children, contact will only be ordered if it is in a child’s best interest to have that contact.
A lot of issues about separation and separating well are discussed in the [[Separating_Emotionally | Separating Emotionally]] and [[Behaviour,_Boundaries_and_Privacy_after_Separation | Behaviour, Boundaries and Privacy after Separation]] sections of the [[Separating_and_Getting_Divorced | Separating and Getting Divorced]] chapter. In the meantime, know that mental health professionals are available who specialize in helping people work through the emotional turmoil that follows the end of a long-term relationship. Look for professionals with the designations ''Registered Clinical Counsellor'' (RCC), ''Certified Canadian Counsellor'' (CCC), ''Registered Psychologist'' (RPsych) or ''Registered Social Worker'' (RSW).  


It is very important to understand that a person's contact with a child is entirely separate from their obligation to pay child support.
*The website [http://www.counsellingbc.com/ counsellingbc.com] offers a list of subscribing counsellors by area of practice.
*The [http://bc-counsellors.org/ BC Association of Clinical Counsellors] also maintains a referral list of its members.
*The [https://bcamft.bc.ca/ BC Association for Marriage and Family Therapy] has a referral list and helpful information about how to choose a counsellor.
*The website [http://findasocialworker.ca/BC/en/default.asp findasocialworker.ca], from the BC Association of Social Workers, has a tool to find a social worker.


<span style="color:#D2691E">'''Important changes'''</span> <br />
==Key legal concepts about parenting after separation==
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, the time that people who are not spouses have with children is called ''contact''. This is the same idea as contact under the ''Family Law Act''.


==Reports and assessments==
Figuring out the legal concepts relating to parenting after separation got a lot easier after the federal ''[[Divorce Act]]'' was updated on 1 March 2021. Before it changed, the ''Divorce Act'' talked about parenting after separation in terms of "custody" and "access," which were a difficult fit with the provincial ''[[Family Law Act]]'', which uses terms like "parental responsibilities," "parenting time" and "contact." Now the ''Divorce Act'' uses the terms "decision-making responsibilities," which are a lot like parental responsibilities, as well as "parenting time" and "contact." However, it's still only the ''Family Law Act'' that talks about ''guardianship'', and that's because making laws about guardianship is a provincial responsibility.


Parents, guardians, and the court sometimes need help in deciding what is in the best interests of the children and need to get someone else's input, which might be from a psychologist, clinical counsellor, family justice counsellor or social worker, or from the children themselves.
===Guardianship===


Mental heath professionals may prepare a ''needs of the child assessment'' that talks about the family, the children, and the arrangements that are in the best interests of the children. These are sometimes also called custody and access reports, section 211 reports, and views of the child reports. Under the old ''[http://canlii.ca/t/ldg3 Family Relations Act]'', these were called section 15 reports. These are ''evaluative'' reports because the professional who prepares them offers an opinion about the best interest of the children.  
"Guardians" are people who are responsible for the care of someone else, usually someone under a legal disability (like being under the age of majority or being mentally incompetent) or someone who couldn't otherwise care for themself (because of advanced age, physical illness or mental illness). Guardians can be responsible for managing all of someone's affairs or just some of them. Guardians are appointed under a written agreement, like a power of attorney or a living will, or by a court order, like an order making someone a litigation guardian for a person who is underage.  


Mental health professionals and other people with special training in interviewing children, including lawyers, may prepare a ''views of the child report'' that talks about the views and wishes of the children, without offering an opinion about the arrangements that are in the best interests of the children. These reports are sometimes also called voice of the child reports. They are ''non-evaluative'' because the person who prepares them just reports on what the child has said, without offering an opinion on the child's views or best interests.
In family law, a guardian is someone who is responsible for making decisions for a child, both big decisions, like deciding where the child will live or how they get treated when they're sick, and smaller decisions, like giving consent for a school field trip or deciding which after-school sports they'll play. Guardians are also responsible for looking after their children, making sure they're fed, clothed and have a place to live, and making sure they go to school for as long as the law requires.  


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


Section 211 of the ''[[Family Law Act]]'' allows the court to order an assessment of:
The ''Family Law Act'' changed this. Instead of having to ask to be appointed as the guardians of their children after separation, parents are usually presumed to be their children's guardians, both while their relationship is intact ''and'' after they separate. And, just like under the ''Family Relations Act'', people who are not the parents of a child can still be appointed as a guardian of the child. Since not all parents are automatically the guardians of their children, and since people other than parents can still be made the guardians of a child, this means that what's important under the ''Family Law Act'' is being a ''guardian'', not being a ''parent''.


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


A needs of the child assessment or section 211 report can be limited to one enquiry or be a full assessment including an assessment of all three areas (a ''full'' section 211 report).
===Parental responsibilities and decision-making responsibility===


These assessments must be in writing, and the court can make orders as to who will prepare the assessment and how the assessment is to be paid for.  Who will prepare the assessment often depends on what type of assessment is required, and whether there's money to pay for it.
Parental responsibilities and decision-making responsibility are all about the job of parenting children. "Parental responsibilities" is the term used by the provincial ''Family Law Act''; "decision-making responsibility" is the term used by the federal ''Divorce Act''. They both mean pretty much the same thing. Remember that the ''Divorce Act'' primarily applies to people who are, or used to be, married to each other, while the ''Family Law Act'' primarily applies to parents, regardless of whether they are married spouses, unmarried spouses, just dating or something else.  


Regardless of who assesses the family, if the report is a full assessment, the assessor will meet each of the parents separately and meet them each again in the presence of the children. If the children are old enough, the assessor may speak to the children separately. The assessor may also speak to other people who know the parents and their children, such as friends, family and neighbours, the children's teachers, and any counsellors or therapists.
Parental responsibilities and decision-making responsibility are both about making decisions on behalf of children. The big difference between the ideas is that parents exercise parental responsibilities during their relationship and after it breaks down, while decision-making responsibility only becomes important when married spouses go to court after they separate. But whether we're talking about parental responsibilities or decision-making responsibility, parents and guardians of a child must always exercise their authority in the best interests of their child.


Once the assessment is finished, the assessor sends the assessment to the parties, as well as to the court if the assessment was court-ordered. These assessments can be used in two ways: to encourage settlement; and, at trial, to persuade the court that the parenting proposal of one parent or guardian is to be preferred over that of the other. The person who prepared the assessment can be called to testify at the trial and will be subject to cross-examination as to how they conducted the assessment and reached their conclusions and recommendations.
If the parents can’t agree on how to share parental responsibilities or decision-making responsibility, judges can make orders about how they'll be shared. These orders can be general or very specific. Sometimes the court will make a general order that parents will share parental responsibilities or decision-making responsibility and must consult each other before making a decision about a child. Sometimes the court will make a specific order that only one parent will have parental responsibilities or decision-making responsibility, or make an order that each parent will have the exclusive authority to make certain decisions about the children but not others. An order like this might say that one parent has sole responsibility for making health care decisions, for example, while the other has sole responsibility for making decisions about education, but that they both have responsibility for making decisions about their child's extracurricular activities.  


It is important to remember that the function of assessors in court is to present their recommendations and the evidence that they relied on, such as test scores and interview observations, in coming to those recommendations. At the end of the day, it is always up to the judge to decide the parenting arrangements for the children. A needs of the child assessment is merely the assessor's recommendation to the court based on their particular expertise as an experienced psychologist, psychiatrist, or family justice counsellor. The assessment is not a final determination of the issue.
The different kinds of decisions that fall under ''decision-making responsibility'' are listed in section 2(1) of the ''Divorce Act'':


The Supreme Court discussed the purposes of custody and access reports in a 2001 case called ''[http://canlii.ca/t/4xfd Gupta v. Gupta]'', 2001 BCSC 649. The court's comments in that case refer to the old term for these reports (which were called ''section 15 reports''), but the comments are just as applicable to assessments under section 211 of the ''Family Law Act'' (which is the newer legislation that replaced the older ''Family Relations Act''):
<blockquote><tt>Decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of</tt></blockquote>
<blockquote><blockquote><tt>(a) health;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) education;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) culture, language, religion and spirituality; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) significant extra-curricular activities.</tt></blockquote></blockquote>


<blockquote>"[A court-ordered report's purpose] is to assist the Court in determining the issues before it, including the paramount issues of what is in the best interests of the children. The section itself contemplates that the person doing the investigation must be approved by the Court, and must be independent or neutral. [...] The investigation is carried out for the purposes of the Court, and in the best interests of the children, and not those of the partial parents who are embroiled in what is seen as the dispute of their lives, who generally represent the extremes of every issue, and whose evidence is often found to be coloured to say the least."</blockquote>
This list is what lawyers call a "non-exhaustive list," meaning that the list of decisions in section 2(1) includes some but not all of the possible decisions that someone with decision-making responsibility may have to make. (An "exhaustive list," on the other hand, is a list that includes all of the possible choices, options or factors that are available.) Other decisions that someone with decision-making responsibility might have to make include deciding where a child will live or deciding whether to give permission for a school field trip.  


A more recent case called ''[http://canlii.ca/t/g2nxw Smith v. Smith]'', 2014 BCSC 61 discusses why needs of the child assessments should be ordered.
The ''Family Law Act'' goes into a lot more detail than the ''Divorce Act'' does. The list of parental responsibilities provided by the ''Family Law Act'' appears at section 41:


For information on to how get a needs of the child assessment, see [[How Do I Get a Needs of the Child Assessment?]]. It's located in the ''How Do I?'' part of this resource, in the section ''Other Litigation Issues''.
<blockquote><tt>Parental responsibilities with respect to a child are as follows:</tt></blockquote>
<blockquote><blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote></blockquote>


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


When people cannot afford a private assessment, the court may order that an assessment be prepared by a family justice counsellor. Unless the parties otherwise agree, the Provincial Court will almost always order that a report be prepared by a family justice counsellor. The assessments of family justice counsellors are free.
===Parenting time===


Because of demand, assessments prepared by family justice counsellors may take up to a year to complete.  
"Parenting time" is the schedule of a child's time between married spouses under the federal ''Divorce Act''. Under the provincial ''Family Law Act'', it's the schedule of a child's time between the child's guardians. Parenting time means almost exactly the same thing, whether you're talking about the ''Divorce Act'' or the ''Family Law Act''.


====Psychologists and counsellors====
(The big difference between "access" under the old ''Divorce Act'' and "parenting time" under the new ''Divorce Act'' is that access referred to the schedule of the married spouse with the least amount of time with the child. Quite often, the child would live more with one parent than the other. The parent that the child mostly lived with had the child's ''primary residence'', and the other parent had ''access'' to the child. Orders would usually specify the other parent's schedule of access, assuming that the child would be with the parent with the child's primary residence for the rest of the time. Parenting time, on the other hand, refers to the schedule of the child's time with ''both'' parents. Each spouse has parenting time with their child, not just one of them.)


Assessments are also prepared by privately retained mental health professionals. Assessments prepared by a psychologist usually include psychological testing.
If the parents can’t agree on how they'll share the children's parenting time, the court can make orders about how parenting time will be allocated between them. Neither the ''Divorce Act'' nor the ''Family Law Act'' makes any presumptions about how parenting time should be allocated between parents. All the ''Divorce Act'' has to say on the subject is that "a child should have as much time with each spouse as is consistent with the best interests of the child," which is ''not'' a presumption that children's time should be allocated equally between parents or allocated in any other way. The ''Family Law Act'' says explicitly that there is no particular allocation of parenting time that “is presumed to be in the best interests of a child.” 


The cost of these assessments can range from $5,000 to $16,000, depending on the number of children involved, where the children and the parents or guardians live, and the amount of work that needs to be done. They can usually be completed in three to six months.
Like all decisions regarding children, the allocation of parenting time must be based on the child’s best interests. The best-interests factors under the ''Divorce Act'' are listed at section 16; the best-interests factors under the ''Family Law Act'' are listed at sections 37 and 38.


===Views of the child reports===
Under section 16.4 of the ''Divorce Act'', someone who has parenting time with a child also has the right to ask for and get information about the child's wellbeing, including about their education and health, from anyone who has it, including the other spouse. Under section 16.2, a spouse has the authority to make "day-to-day decisions" about the child during their parenting time. ''Day-to-day decisions'' are about things like deciding whether to go to the park or to the movies, deciding what clothes the child should wear and deciding when the child should go to bed, as well as emergency decisions. The ''Family Law Act'' says sort of the same thing in section 42(2):


Section 37(2)(b) of the ''[http://canlii.ca/t/52cd2 Family Law Act]'' requires the court to consider the views of the child. Section 202 allows the court to decide ''how'' the child’s views are heard and presented.  
<blockquote><tt>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.</tt></blockquote>


The child's views can be presented to the court in a number of ways, including through the parties' evidence, letters the child might write to the court, or interviews with either the judge or a lawyer appointed to represent the child. There are plenty of advantages and disadvantages to each. Views of the child reports are a good alternative. Views of the child reports give children an opportunity to express their views to a neutral person who will listen to them and prepare a written report for their parents and the court.
===Contact===


These reports are prepared by trained, neutral professionals: usually a mental health professional, lawyer, mediator, or someone else with special training. The professional will interview the child, sometimes more than once, and then write a report summarizing what the child has said, using the child's own words as much as possible. These reports are different than other reports because all they talk about is what the child has said, and they don't provide the professional's assessment of the child's best interests, or even an opinion about what the child has said. They simply repeat the child's statements to the professional.
Under the ''Divorce Act'', someone who is not a married spouse may have "contact" with a child. Under the ''Family Law Act'', someone who is not a guardian may have contact with a child, including a parent who is not a guardian.  


For information on to how get a views of the child report, see [[How Do I Get a Views of the Child Report?]]. It's located in the ''How Do I?'' part of this resource, in the section ''Other Litigation Issues''.
''Contact'' is an entitlement to spend time with a child, usually according to a fixed schedule, the way parenting time is usually allocated between guardians. However, that's all contact is, it's just an entitlement to spend time with a child. Someone with contact does not have decision-making responsibility or parental responsibilities for the child. They do not have the right to get information about the child, and they do not have the right to make day-to-day decisions about the child.


====Family justice counsellors====
If the child's parents and a person seeking contact can’t agree on whether and how much contact the person should have with the children, the court can make orders about whether the person should have contact with the children and what the schedule of contact should be. Someone who wants to ask for contact under the ''Divorce Act'' must get the court's permission to ask for contact first, and the child's parents must already be involved in a court proceeding under the ''Divorce Act''.


Family justice counsellors can prepare views of the child reports for free, but because there is such a demand for these reports and so few family justice counsellors trained to prepare them, there can be a delay of up to six months before the report is available.
Like all decisions regarding children, the decision about whether and how much contact a person should have with a child will be based on the child’s best interests. The best-interests factors under the ''Divorce Act'' are listed at section 16; the best-interests factors under the ''Family Law Act'' are listed at sections 37 and 38.


====Psychologists and counsellors====
===Parenting orders, parenting plans and parenting arrangements===


The reports of lawyers and mental health professionals can be prepared as quickly as the reporter's calendar allows, sometimes the same day, but more typically within a week. The cost of these reports can range from $500 to $3,000, depending on the number of children involved and the reporter's hourly rate. The website of the BC Hear the Child Society lists the society's roster of trained lawyers and mental health professionals and where they practice.
Under the ''Divorce Act'', court orders about parenting time or decision-making responsibility are called ''parenting orders''. Agreements and arbitrators' awards about parenting time, decision-making responsibility or contact are called ''parenting plans''. Court orders about contact are called, appropriately enough, ''contact orders''.


==Children's caregivers and extended family==
Under the ''Family Law Act'', agreements, arbitrators' awards and orders about parenting time or parental responsibilities are called ''parenting arrangements''.


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


Grandparents and other people who are not parents normally become involved in court proceedings dealing with children, as parties in their own right, in only a few situations:
People other than a child's biological or adoptive parents may also be interested in a child's parenting arrangements. Typically, these people are a child's blood relatives &mdash; grandparents, aunts, uncles, and so forth &mdash; although there's no reason at all why someone else, like an unrelated long-term caregiver or neighbour, couldn't also have an important role in a child's life. Most often, however, it's grandparents who want to have a legal role in their grandchildren's lives. Grandparents, extended family members and other adults who are not parents normally get involved in legal disputes about children in only a few situations, usually where:


*where one or both of the guardians of the children are dead,
*one or all of the guardians of a child have died,
*where one or both of the guardians have abandoned the children or the care of the children,
*one or all of a child's guardians have abandoned a child,
*where there are serious concerns about the fitness of the guardians to care for the children, or
*there are serious concerns about the ability of guardians to care for their child, or
*where they are being denied time or involvement with the children.
*they are being refused time with a child, or involvement in the child's life.


Their concerns are usually about:
Their concerns are about either supervising or managing the parenting of a child, or setting up a schedule that will let them see a child on a regular basis.


*getting or maintaining contact with the children,
No matter how important a grandparent's or other person's concerns might be, the court will place a great deal of weight on the wishes of the parents. In a 2003 case of the Supreme Court, [http://canlii.ca/t/572w M.(D.W.) v. M.(J.S.)], the court said that while it must give "paramount consideration" to the best interests of the child, "significant deference must be accorded the custodial parent and their ability to determine the child’s best interests."
*supervising the parenting of the children when they are with a guardian, or
*being appointed as a guardian of the children.


No matter how valid or legitimate a grandparent's or other non-parent's concerns might be, the court will place a great deal of weight on the wishes of the parents. In a 2003 case of the B.C. Supreme Court, ''[http://canlii.ca/t/572w M.(D.W.) v. M.(J.S.)]'', 2003 BCSC 1229, the court said that while it must give "paramount consideration" to the best interests of the child, "significant deference must be accorded the custodial parent and their ability to determine the child’s best interests."
===The legislation===


===Legislation===
Two laws might apply to people other than parents who are asking for guardianship of or contact with children.


Two laws might apply to non-parents seeking guardianship of or contact with children.
*'''The ''Divorce Act'':''' This law applies if the child's parents are married and are already involved in a court proceeding under the federal ''[[Divorce Act]]''. However, to make an application under the ''Divorce Act'', you have to get the court's permission first.
 
*'''The ''Family Law Act'':''' This law applies whether the child's parents are married to each other or not. It also applies whether or not the parents are already involved in a court proceeding under the provincial ''[[Family Law Act]]''. You do not need the court's permission to make an application under the ''Family Law Act'', you can just make your application.
Where the children's parents or guardians are already in court about the children, the federal ''[[Divorce Act]]'' applies, if the guardians are or were married. Otherwise, the provincial ''[[Family Law Act]]'' applies. If the parents or guardians are not involved in a court proceeding between each other, the ''Family Law Act'' applies.


Each law has different rules about how and when non-parents can apply in court, and it's important to understand which law might be applicable.
Each law has different rules about how and when non-parents can apply in court, and it's important to understand which law might be applicable.
Line 351: Line 325:
====The ''Divorce Act''====
====The ''Divorce Act''====


According to section 16(1) of the ''Divorce Act'', the court can make an order for ''access'' or ''custody'' on the application of a spouse or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application.
Under section 16.1(1)(b) of the ''Divorce Act'', someone who isn't a "spouse" may ask the court for a "parenting order." A ''parenting order'' is an order about "parenting time" with or "decision-making responsibility" for a child. ''Parenting time'' usually means how the child's time is divided between their parents, but in this context includes time with someone who isn't a parent. ''Decision-making responsibility'' means the responsibility for making decisions on behalf of a child about important things like the child's healthcare or education. (Parenting time and decision-making responsibility are discussed in a lot more detail in the section [[Basic Principles of Parenting after Separation|Parenting after Separation]].) To make this application, you must "stand in the place of a parent" to the child or "intend to stand in the place of a parent," and, under section 16.1(3) you must first get the court's permission before you can make your application.


Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before the grandparents can step in; there must be an existing proceeding in which to bring the application. A grandparent cannot start a court proceeding under the ''Divorce Act'', since the act only applies to disputes between married spouses.
Under section 16.5(1) of the ''Divorce Act'', someone who isn't a "spouse" may also ask the court for a "contact order." A ''contact order'' is an order about the time that someone who isn't a parent has with a child. This sounds the same as an order for "parenting time," but there are some big differences. Someone with parenting time with a child has the right to make day-to-day decisions about the child, including emergency decisions, and the right to get information about the child's wellbeing, including about their health and education. Someone with contact, on the other hand, has none of these rights. Contact is just about spending time with the child and nothing else. (Contact is also discussed in the chapter [[Basic Principles of Parenting after Separation|Parenting after Separation]].)


<span style="color:#D2691E">'''Important changes'''</span> <br />
Because we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses, or formerly married spouses, before someone who isn't a spouse can step in and ask for a parenting order or a contact order, or ask to change a parenting order or a contact order. There must be an existing proceeding between spouses in which the person's application can be made.
Under the changes to the ''Divorce Act'', "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.


====The ''Family Law Act''====
====The ''Family Law Act''====


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


Any person can apply to be appointed as the guardian of a child under section 51 of the act. However, these applications can be difficult and time-consuming and the court must be satisfied that the appointment is in the best interests of the child. An applicant who is applying to become the guardian of a child must fill out a special affidavit required by the [http://canlii.ca/t/85pb Provincial Court (Family) Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules]. The affidavit covers:
In most cases, a child's parents are the child's guardians, which means that normally only a child's parents are entitled to have parental responsibilities and parenting time with the child. However, someone who isn't a parent can ask the court to be appointed as a guardian of a child under section 51 of the ''Family Law Act''. These applications can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. Someone who is applying to become the guardian of a child must fill out a special affidavit required by the [http://canlii.ca/t/85pb Provincial Court (Family) Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules]. The affidavit covers:


*the applicant's relationship to the child,
*the applicant's relationship to the child,
*the other children currently in the care of the applicant,
*the other children currently in the care of the applicant,
*any history of family violence that might affect the child, and
*any history of family violence involving the applicant that might affect the child, and
*any previous civil or criminal court proceedings related to the best interests of the child.
*any previous civil or criminal court proceedings involving the applicant that are related to the best interests of the child.
 
Someone who is applying to become a guardian must also get a criminal records check, a protection order registry records check, and a records check from the Ministry of Children and Family Development.
 
People who are a guardian of a child, including people who have been appointed as a child's guardian by court order, may ask the court for an order about the child's "parenting arrangements" under section 45(1) of the act. An order about a child's ''parenting arrangements'' is an order about "parenting time" with or "parental responsibilities" for a child. "Parenting time" usually means how the child's time is divided between their parents, but in this context includes time with someone who isn't a parent. "Parental responsibilities" means the responsibility for making decisions on behalf of a child about important things like the child's healthcare or education. (Parenting time and parental responsibilities are discussed in a lot more detail in the section [[Basic Principles of Parenting after Separation|Parenting after Separation]].)


Applicants must also get a new criminal records check, and a records check from the Ministry of Children and Family Development (MCFD).
Under section 59 of the ''Family Law Act'', someone who isn't a guardian may ask the court for a "contact order." A ''contact order'' is an order about the time that someone who isn't a guardian has with a child. This sounds just like an order for "parenting time," but there are some big differences. Someone with parenting time with a child has the right to make day-to-day decisions about the child, including emergency decisions. Someone with contact, on the other hand, does not have this right. Contact is just about spending time with the child and nothing else. (Contact is also discussed in the section [[Basic Principles of Parenting after Separation|Parenting after Separation]].)  


Any person can apply for contact with a child under section 59 of the act. The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check or an MCFD records check done.
Under section 149(1) and 149(2)(b) of the act, any person may ask the court for an order that a child's parent, stepparent or guardian pay ''child support'' for the benefit of a child to a "designated person," normally the person the child lives with the most. (Child support is discussed in a lot more detail in the [[Child Support]] chapter.) The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check, a protection order registry records check or a Ministry of Children and Family Development records check.


===Custody and guardianship===
If the child's guardians are already in court, a person who isn't a parent of the child can start a court proceeding and ask that the new proceeding be "joined" to the court proceeding between the guardians. They can then ask for orders about guardianship of the child, the child's parenting arrangements, contact with the child or child support for the child.
 
If the guardians are not already in court, a person who isn't a parent of the child can start a court proceeding against the child's parents or guardians and ask for orders about guardianship, parenting arrangements, contact with the child or child support for the child.
 
===Guardianship, decision-making and parenting time===
{{Clicklawbadge
{{Clicklawbadge
| resourcetype = <br/>a resource for<br/>
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| link        = [http://clicklaw.bc.ca/helpmap/service/1133 Grandparents raising <br/> grandchildren]<br/>'''and information on'''<br/>[http://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents <br/>raising grandchildren]
| link        = [http://clicklaw.bc.ca/helpmap/service/1133 Grandparents raising <br/> grandchildren]<br/>'''and information on'''<br/>[http://clicklaw.bc.ca/question/commonquestion/1118 Benefits for grandparents <br/>raising grandchildren]
}}  
}}When grandparents, extended family members and other adults are asking for an order or an award about guardianship, decision-making or parenting time, it's important to know that there is a strong presumption in favour of the wishes of the children's natural or adoptive parents. The court will generally be willing to allow children to remain with their parent or parents unless a strong case can be made that the parents are neglectful and that the children are suffering in their care. To quote from a 1992 Supreme Court case, [http://canlii.ca/t/1dfdl Reid v. Watts]:
There is a strong presumption in favour of the natural or adoptive parents of the children. The court will generally be inclined to allow the children to remain with their parent or parents unless a strong case can be shown that the parents are neglectful and that the children are suffering in their care. To quote from a 1992 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1dfdl Reid v. Watts]'', 1992 CanLII 916 (BC SC), Vancouver Registry No. A913221:


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


The Supreme Court of Canada emphasized the children's best interests a bit more strongly in ''[http://canlii.ca/t/1lpdq Racine v. Woods]'', [1983] 2 SCR 173, a case from 1983:
The Supreme Court of Canada, on the other hand, emphasized the children's best interests a bit more strongly in [http://canlii.ca/t/1lpdq Racine v. Woods], a case from 1983:


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


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


*police records,  
*police records,  
* the records of social workers involved with the children,
*the records of social workers involved with the children,
* files from the Ministry for Children and Families, and
*records from the Ministry of Children and Family Development, and
* a psychologist's report.
*a psychologist's report under section 211 of the ''Family Law Act''.


Factors that the courts have taken into consideration in awarding custody to a non-parent have included:
Factors that the courts have taken into consideration in awarding guardianship, decision-making or parenting time to people other than parents have included:


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


Grandparents and other non-parents shouldn't be too discouraged by the generally pessimistic tone of this discussion. There are quite a few cases in which grandparents have been awarded custody, guardianship, and/or contact with their grandchildren. It is possible to succeed on a custody or guardianship application, although the chances of success depend wholly on the circumstances of each case. For example, in a BC Supreme Court decision ''[http://canlii.ca/t/gg1k0 Popovic v. Andjelic]'', 2014 BCSC 2522, the child and her mother resided with the maternal grandparents. The child's father lived in another country. After the mother died suddenly, the grandparents applied to be appointed the guardians of the child and the court granted their request. The father also remained a guardian but without [[Guardianship, Parenting Arrangements and Contact#Parental responsibilities and parenting time|parental responsibilities]].
Don't be too discouraged by the generally pessimistic tone of this discussion. There are quite a few cases in which grandparents have been awarded guardianship, decision-making or parenting time with their grandchildren. It is possible to succeed on an application for guardianship, decision-making or parenting time, although the chances of success depend entirely on the circumstances of each case. For example, in a 2014 Supreme Court decision, [http://canlii.ca/t/gg1k0 Popovic v. Andjelic], the child and her mother resided with the maternal grandparents. The child's father lived in another country. After the mother died suddenly, the grandparents applied to be appointed the guardians of the child and the court granted their request. The father also remained a guardian but without parental responsibilities for the child.


===Access and contact===
===Contact===


There is a big difference between seeking custody or guardianship and seeking access or contact. In custody cases, the courts are concerned with the fundamental living arrangements and the health and welfare of the children. In court proceedings for access or contact, the parent usually has custody and no one is challenging the right of the parent to control their child's upbringing. As a result, the court will place an even greater emphasis on the parent's discretion and judgment.
There's a big difference between asking for guardianship, decision-making and parenting time, and asking for contact. In cases about guardianship, decision-making and parenting time, the courts are concerned with the adequacy of the children's living arrangements and their health and welfare, and the enormous responsibility the court may be giving to someone who is not a parent. In cases about contact, the parents are usually guardians, with parental responsibilities and parenting time, and no one is challenging their ability to manage their children's upbringing. The children are usually well and the parents are doing just fine. As a result, the court will usually place an even greater emphasis on the parent's discretion and judgment.


Grandparents and other non-parents do not have a presumptive right of access to or contact with children under either the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', but they can ask the court to make an order giving them access to or contact with their grandchildren. The 1993 British Columbia case of ''[http://canlii.ca/t/1djbt Chapman v. Chapman]'', 1993 CanLII 2598 (BC SC) sets out the general rules governing applications for access or contact by non-parents:
Grandparents and other people do not have a presumptive entitlement to contact with children under either the ''Divorce Act'' or the ''Family Law Act'', but they can certainly ask for an order that they have contact. The 1993 Supreme Court case of [http://canlii.ca/t/1djbt Chapman v. Chapman] discussed the general rules governing applications for contact by people other than parents:


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


Where both guardians are still in the picture, the court will usually require that grandparents' access or contact occurs during the time that their child has the grandchild. In other words, maternal grandparents will usually have access or contact during the mother's time with the child and the paternal grandparents will have access or contact during the father's time with the child. See the B.C. Provincial Court decision called [http://canlii.ca/t/gjgdl ''N.H. v. D.H.''], 2013 BCPC 413.  
Where both parents are still in the picture and have already been arguing about how the child's parenting time will be divided between them, the court will usually require that any contact allowed to grandparents and other family members will be carved out of the child's time with the parent who is their relative. In other words, maternal grandparents will usually have contact during the mother's parenting time with the child, and paternal grandparents will have contact during the father's parenting time with the child. The Provincial Court decision in [http://canlii.ca/t/gjgdl N.H. v. D.H.], a case from 2013, is a good example about how the court thinks about contact.  


Where only one guardian is in the picture, the court will usually determine what access or contact the grandparents ought to have, independently of the interests of the guardian.
As with applications for guardianship, decision-making or parenting time, grandparents and other people shouldn't be discouraged by the generally pessimistic tone of this discussion. There are lots of cases in which grandparents have been awarded time with their grandchildren; it ''is'' possible to succeed on an application for contact!


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


<span style="color:#D2691E">'''Important changes'''</span> <br />
When someone other than a parent has an order that results in the child living mostly with them, that person can ask that the child's parents or guardians pay child support to them. The same rules about child support that apply to cases between parents and guardians apply to cases where someone other than a parent is asking for child support, except that grandparents, extended family members and other people can only ask for child support under the ''[[Family Law Act]]''; they cannot apply under the ''[[Divorce Act]]''.  
Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, the time that people who are not spouses have with children is called ''contact'' rather than "access." This is the same idea as contact under the ''Family Law Act''.


===Financial support===
Grandparents can also ask for financial support from the provincial government to help meet the cost of caring for any grandchildren in their care. The province of British Columbia pays grandparents who are looking after their grandchildren at the same rate as foster parents. It's not a huge sum, but it's better than nothing.


When a non-parent obtains custody of a child or an order that the child live mostly with them, that person can apply for child support to be paid by the parents or guardians of the child. The same rules will apply to a non-parent's application for child support as apply to a guardian's application, except that grandparents and other non-parents can only apply for child support under the ''[[Family Law Act]]''; they cannot apply under the ''[[Divorce Act]]''. See section 147 and 149 of the ''[[Family Law Act]]''.
Grandparents are also entitled to ask for financial support from the provincial government to help meet the cost of caring for any grandchildren in their care. The province of British Columbia pays grandparents who are looking after their grandchildren at the same rate as foster parents. It's not a princely sum, but it's better than a kick in the teeth.
<!--- HIDDEN
<!--- HIDDEN
==Further Reading in this Chapter==
==Further Reading in this Chapter==
Line 440: Line 416:
* ''[[Family Law Act]]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/80mh Federal Child Support Guidelines]''
* ''[https://canlii.ca/t/80mh Federal Child Support Guidelines]''
* [http://canlii.ca/t/85pb Provincial Court (Family) Rules]
* [https://canlii.ca/t/b8rn Provincial Court Family Rules]
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [https://canlii.ca/t/8mcr Supreme Court Family Rules]
 
===Resources===
* [https://mylawbc.com/mediation/help/index.php Legal Aid BC's Early Resolution Centre website]


===Links===
===Links===


* [http://www2.gov.bc.ca/gov/content/safety/crime-prevention/criminal-record-check Ministry of Attorney General's website "Criminal Record Check BC"]
* [https://www2.gov.bc.ca/gov/content/safety/crime-prevention/criminal-record-check Ministry of Attorney General's website "Criminal Record Check BC"]
* [http://www.cpic-cipc.ca/English/index.cfm Canadian Police Information Centre (CPIC)]
* [https://www.cpic-cipc.ca/index-eng.htm Canadian Police Information Centre (CPIC)]
* [http://clicklaw.bc.ca/helpmap/service/1133 Grandparents Raising Grandchildren Support Line]
* [https://www.clicklaw.bc.ca/helpmap/service/1133 Kinship Care Help Line]
* [http://clicklaw.bc.ca/question/commonquestion/1118 Clicklaw Common Question on Benefits for Grandparents Raising Grandchildren]
* [https://www.clicklaw.bc.ca/question/commonquestion/1118 Clicklaw Common Question on Benefits for Grandparents Raising Grandchildren]
* [http://clicklaw.bc.ca/resource/1246 Dial-A-Law Script "Custody and Access, Guardianship, Parenting Arrangements and Contact"]
* [https://www.clicklaw.bc.ca/resource/1246 Dial-A-Law Script "Guardianship, Parenting Arrangements, and Contact"]
* [https://www.clicklaw.bc.ca/resource/4643 Legal Services Society's Family Law website's information page "Children"]
* [https://www.clicklaw.bc.ca/resource/4643 Legal Aid BC's Family Law website's information page "Children"]
* [https://www.clicklaw.bc.ca/resource/4655 Legal Services Society's Family Law website's information page "Parenting & Guardianship"]
* [https://www.clicklaw.bc.ca/resource/4655 Legal Aid BC's Family Law website's information page "Parenting & Guardianship"]
* [https://www.clicklaw.bc.ca/resource/2639 Legal Services Society's fact sheet "How to Become a Child's Guardian"]
* [https://www.clicklaw.bc.ca/resource/2639 Legal Aid BC's fact sheet "How to Become a Child's Guardian"]
* [http://www.clicklaw.bc.ca/resource/4403 BC Ministry of Attorney General's website "Support and Resources for Dealing with Separation and Divorce"]
* [https://www.clicklaw.bc.ca/resource/4403 BC Ministry of Attorney General's website "Support and Resources for Dealing with Separation and Divorce"]
* [https://www.clicklaw.bc.ca/resource/2315 BC Ministry of Children and Family Development's website "Extended Family Program"]
* [https://www.clicklaw.bc.ca/resource/2315 BC Ministry of Children and Family Development's website "Extended Family Program"]
* [http://www.clicklaw.bc.ca/resource/4402 Canadian Bar Association's ''Successfully Parenting Apart: A Toolkit'']
* [https://www.clicklaw.bc.ca/resource/4402 Canadian Bar Association's ''Successfully Parenting Apart: A Toolkit'']


{{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]], April 15, 2019}}
{{REVIEWED | reviewer = [[JP Boyd]], 10 August 2022}}


{{JP Boyd on Family Law Navbox|type=chapters}}
{{JP Boyd on Family Law Navbox|type=chapters}}

Latest revision as of 18:06, 15 January 2024

When parents separate, they have to make decisions about four important issues: where the children will live; how parenting decisions will be made; how often each of them will see the children; and, how the children will be provided for. This chapter reviews the first three of these issues in detail. The fourth issue is covered in the Child Support chapter.

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

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

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

Introduction

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

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

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

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

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

Parenting after separation and the law

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

For unmarried spouses and other unmarried parents, the only law that applies is the Family Law Act.

Only the Supreme Court can deal with claims about parenting after separation under the Divorce Act. Both the Supreme Court and the Provincial Court can deal with claims about parenting under the Family Law Act.

The Divorce Act and decision-making responsibility and parenting time

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

Decision-making responsibilities are the responsibilities parents have to make important decisions on behalf of their children, about things like where the children go to school, how they're treated when they get sick and which sorts of extracurricular activities they'll participate in. Under the old Divorce Act, people with custody had the responsibility for making decisions like these. Decision-making responsibility under the Divorce Act is a lot like "parental responsibilities" under the Family Law Act. (People other than married spouses may be able to ask for decision-making responsibilities when there's already a court proceeding under the Divorce Act.)

Parenting time is the schedule of the time that each parent has with their children. Under the old Divorce Act, we talked about the children's schedule in terms of "access," but "access" only referred to the schedule of the parent who saw the children the least. Parenting time under the Divorce Act means almost exactly the same thing as "parenting time" under the Family Law Act. (People other than married spouses may be able to ask for parenting time when there's already a court proceeding under the Divorce Act.)

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

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

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

  • Custody: If you have custody of your children, whether you had sole, joint or shared custody of your children, you now have decision-making responsibilities for your children. However, if your agreement or order limited the sort of decisions you could make on behalf of your children, those limits still apply.
  • Access with custody: If you have custody of your children and access to your children, you and their other parent now have parenting time with your children and decision-making responsibilities for your children. The time the children are with you is now your parenting time, and the time the children are with their other parent is the other parent's parenting time. However, if your agreement or order limited the sort of decisions you could make on behalf of your children, those limits still apply.
  • Access without custody: If you have access to your children but not custody of your children, you have parenting time with your children but you don't have any decision-making responsibilities for your children.

It's important to know that the language in the updated Divorce Act doesn't give anyone any more rights than they had before.

The Divorce Act and contact

"Contact" is the time that people other than married spouses have with children. People other than married spouses can ask for contact with children when there's already a court proceeding between the spouses under the Divorce Act. Contact under the Divorce Act means almost exactly the same thing as "contact" under the Family Law Act.

The court can make orders about contact when the children's parents are already involved in a court proceeding under the Divorce Act.

The Family Law Act and guardianship, parental responsibilities and parenting time

The Family Law Act puts the emphasis on people who are guardians, rather than on people who are parents. Guardians are usually, but not always, the parents of a child. A child's guardians might also include:

  • people who are parents because of an assisted reproduction agreement,
  • people other than parents who are appointed by the court as guardians, and
  • people who are appointed by a guardian as guardians when the appointing guardian dies or becomes too sick to perform the responsibilities of a guardian.

Guardians have "parental responsibilities" for their children and have "parenting time" with their children.

Parental responsibilities are the responsibilities guardians have for making important decisions on behalf of their children, about things like where the children go to school, how they're treated when they get sick and which sorts of extracurricular activities they'll participate in. Only guardians can have parental responsibilities. Parental responsibilities under the Family Law Act are a lot like "decision-making responsibility" under the Divorce Act.

Parenting time is the schedule of the time that each guardian has with their children. Only guardians can have parenting time. Parenting time under the Family Law Act means almost exactly the same thing as "parenting time" under the Divorce Act.

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

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

The Family Law Act and contact

"Contact" is the time that people other than guardians have with children, including the time of parents who are not guardians. Contact under the Family Law Act means almost exactly the same thing as "contact" under the Divorce Act.

The best interests of the children

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

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

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

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

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(h) any other relevant factor.

Part 4 of the Family Law Act is about parenting arrangements and contact orders. The parts of the Family Law Act that talk about children's best interests and family violence are very similar to section 16 of the Divorce Act. Section 37 of the Family Law Act is about the best interests of children and says this:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) how recently the family violence occurred;

(c) the frequency of the family violence;

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

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

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

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

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

(i) any other relevant matter.

As a result of these sections, when the court has to make orders about decision-making responsibilities, parenting time and contact under the Divorce Act, or parental responsibilities, parenting time and contact under the Family Law Act, it must take into account a whole range of factors, including:

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

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

Children's experiences of separation

The end of an important relationship is always difficult for parents. It can be just as difficult, if not worse, for their children. How children cope with the end of their parents' relationship has to do with two things: the age and maturity of the children, and how their parents manage the breakdown of their relationship.

Let's move away from the law for a bit and talk about how children experience the separation of their parents. This is an important subject that we'll return to in the Parenting Apart and Children Who Resist Seeing a Parent sections of this chapter.

Children don't see things in terms of guardianship, parental responsibilities and parenting time when their parents' relationship ends. All they know is that something has gone wrong. Their parents are yelling at each other a lot, and then, one day, one of them isn't there anymore. Very young children won't understand these adult problems. Children who are in primary school will have a better idea, since they'll have friends whose parents have separated and others whose parents were never together in the first place. Tweens and teens may have a more grown-up grasp of things, as they'll likely have lost relationships of their own and can appreciate the idea that their parents' relationship has also ended. How children cope with their parents' separation changes as they grow older and more mature and gain more life experience.

Things are a lot different for parents. A significant, often lengthy relationship has ended, and in the midst of all of the emotions that go along with that — grief, anger, jealousy, love, and loss — they suddenly find themselves opposed in interest to the person they once loved. They might also find themselves having to deal with some extremely difficult legal issues about some of the things that are most important to them, like their children. It's even worse when parents wind up fighting about these things in court.

Litigation can have a very profound impact on people. At its core, litigation is an adversarial process. Each parent is fighting the other in order to "win," and where there's a winner there's always a loser. This sort of approach to resolving disputes often polarizes parents and encourages them to take extreme positions. In circumstances like these, it can be easy to forget how important it is that the children maintain a positive, loving relationship with each of their parents. It's also easy for each parent's view of the other to become clouded by hatred, malice and spite, to the point where nothing the other parent can do is ever right. Attitudes like these are almost impossible to shield from children. Whether intentionally or unintentionally, the children are inevitably exposed to these negative views which, without intervention, can come to colour the children's own views of the other parent.

Of course, lots of parents are able to separate like, well, adults. They get counselling when counselling is required, and sometimes get that counselling together. They're mature, treat each other with courtesy and respect for the most part, and acknowledge each other's strengths as people and as parents. These parents don't have a lot of conflict from which the children need to be protected, and how they resolve disagreements can become a helpful model for the children when they have to address problems of their own.

The impact of separation by age

How children experience the separation of their parents depends not only on the level of conflict between their parents, but also on their age, stage of development and maturity. Infants won't understand what's going on when their parents separate, but they will be aware of anger and hostility and be distressed if they're in the middle of yelling and fighting. (Don't think that your baby isn't impacted by your arguments just because they don't understand what you're saying!) They'll also be aware of the absence of a parent if one of them moves out. For children of this age, it's particularly important that the parent who's moved out sees the children frequently, usually for shorter periods of time.

Toddlers will also be aware that a parent is missing, but won’t understand why. They are likely to experience anxiety from the change in their home environment, and may have setbacks in their development. A toddler who has been potty trained, for example, may need pull-ups again. Any lost milestones, however, will eventually be regained. As with infants, it's really important that the parent who's moved out sees the children frequently. However, these children will be able to spend longer periods of time with the parent who's moved out, possibly including overnights.

Preschoolers will know that a parent is missing, however their understanding of why the parent is missing will be fuzzy. Children of this age are used to being the centre of attention and may come to believe that something they did caused the separation, and feel guilty as a result.

Children between the ages of 6 to 8 will have a better grasp of what's going on. These children are getting much better at expressing their feelings, but, now that they're in a social environment with other kids at school, they're also learning to hide and mask their feelings, to lie when lying is useful, and to say things that they think other people want to hear. It can be difficult to know exactly how these children are dealing with their parents' separation.

On the other hand, children aged 9 to 12 are usually angry about their parents' separation and its impact on their lives. They may interpret the separation of their parents as also a rejection of themselves, usually by the parent who's moved out.

Teenagers will have a much more adult understanding of their parents' separation and often appreciate why their parents' relationship didn't work out. However, while teenagers are developing important skills like empathy and have a deepening appreciation of the complexities of interpersonal relationships, they often develop a moral compass that's rigid and uncompromising. They are likely to blame their parents for separating, and the upheaval in their personal lives, especially if it means that they've had to move or change schools. Teenagers can be highly judgmental toward the parent they see as responsible for the separation.

The bad news about separation

Separation is difficult for all children, no matter how well adjusted they and their parents might be. At the most basic level, the separation of a child's parents produces a tremendous change in their family; ever since they can remember, both parents were there and present in their lives, and then, one day, that changes. If that fundamental bedrock feature of their lives can change, what else can change? Anxiety, anger and frustration are pretty understandable responses.

Unfortunately, the social science about the impact of separation shows that children who have experienced the separation of their parents are at high risk of depression, self-harming behaviours, falling behind in school and dropping out of school, promiscuity and pregnancy as teens, misuse of drugs and alcohol, eating disorders, and a bunch of other things. They're also at higher risk of separation and divorce in their own relationships as adults. However, social science also tells us that the impact of parental conflict on children is even worse than the impact of separation. You sometimes hear people in unhappy relationships talking about how they're "staying together for the kids." That's an important point, and shows that these people have placed their children's wellbeing and happiness above their own, but if these people are engaged in high levels of conflict, staying together may be worse for the children than separating.

The good news about separation

While it's true that separation has an important impact on children of all ages, the good news is that parents can mitigate the likelihood of negative outcomes, like the children falling behind and school and the other things just mentioned. In fact, handling a separation well can help children adjust to the change and even help them develop resiliency. It's important to know that parents' behaviour during their separation can have a huge impact on the children's relationships with each of them, and on the children's expectations for their own future relationships in terms of trust, intimacy and closeness. As a result, it's important to minimize conflict and choose dispute resolution processes — and lawyers! — that promote cooperation and discourage conflict.

It's also important for parents to recognize when they need help. It often takes longer than people think to adjust to separation, and it's hard for children to adjust to the separation when their parents haven't adjusted themselves. A prominent lower mainland counsellor describes separation and divorce as a wound that must be treated properly in order to heal, and will eventually infect other areas of our lives if it's not treated and is allowed to fester. Proper treatment can help parents cope better with their separation, which in turn will help the children cope better with their parents' separation.

A lot of issues about separation and separating well are discussed in the Separating Emotionally and Behaviour, Boundaries and Privacy after Separation sections of the Separating and Getting Divorced chapter. In the meantime, know that mental health professionals are available who specialize in helping people work through the emotional turmoil that follows the end of a long-term relationship. Look for professionals with the designations Registered Clinical Counsellor (RCC), Certified Canadian Counsellor (CCC), Registered Psychologist (RPsych) or Registered Social Worker (RSW).

Key legal concepts about parenting after separation

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

Guardianship

"Guardians" are people who are responsible for the care of someone else, usually someone under a legal disability (like being under the age of majority or being mentally incompetent) or someone who couldn't otherwise care for themself (because of advanced age, physical illness or mental illness). Guardians can be responsible for managing all of someone's affairs or just some of them. Guardians are appointed under a written agreement, like a power of attorney or a living will, or by a court order, like an order making someone a litigation guardian for a person who is underage.

In family law, a guardian is someone who is responsible for making decisions for a child, both big decisions, like deciding where the child will live or how they get treated when they're sick, and smaller decisions, like giving consent for a school field trip or deciding which after-school sports they'll play. Guardians are also responsible for looking after their children, making sure they're fed, clothed and have a place to live, and making sure they go to school for as long as the law requires.

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

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

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

Parental responsibilities and decision-making responsibility

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

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

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

The different kinds of decisions that fall under decision-making responsibility are listed in section 2(1) of the Divorce Act:

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

(a) health;

(b) education;

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

(d) significant extra-curricular activities.

This list is what lawyers call a "non-exhaustive list," meaning that the list of decisions in section 2(1) includes some but not all of the possible decisions that someone with decision-making responsibility may have to make. (An "exhaustive list," on the other hand, is a list that includes all of the possible choices, options or factors that are available.) Other decisions that someone with decision-making responsibility might have to make include deciding where a child will live or deciding whether to give permission for a school field trip.

The Family Law Act goes into a lot more detail than the Divorce Act does. The list of parental responsibilities provided by the Family Law Act appears at section 41:

Parental responsibilities with respect to a child are as follows:

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

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

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

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

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

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

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

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

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

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

(k) subject to any applicable provincial legislation,

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

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

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

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

Parenting time

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

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

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

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

Under section 16.4 of the Divorce Act, someone who has parenting time with a child also has the right to ask for and get information about the child's wellbeing, including about their education and health, from anyone who has it, including the other spouse. Under section 16.2, a spouse has the authority to make "day-to-day decisions" about the child during their parenting time. Day-to-day decisions are about things like deciding whether to go to the park or to the movies, deciding what clothes the child should wear and deciding when the child should go to bed, as well as emergency decisions. The Family Law Act says sort of the same thing in section 42(2):

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

Contact

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

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

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

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

Parenting orders, parenting plans and parenting arrangements

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

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

Children's relatives and caregivers

People other than a child's biological or adoptive parents may also be interested in a child's parenting arrangements. Typically, these people are a child's blood relatives — grandparents, aunts, uncles, and so forth — although there's no reason at all why someone else, like an unrelated long-term caregiver or neighbour, couldn't also have an important role in a child's life. Most often, however, it's grandparents who want to have a legal role in their grandchildren's lives. Grandparents, extended family members and other adults who are not parents normally get involved in legal disputes about children in only a few situations, usually where:

  • one or all of the guardians of a child have died,
  • one or all of a child's guardians have abandoned a child,
  • there are serious concerns about the ability of guardians to care for their child, or
  • they are being refused time with a child, or involvement in the child's life.

Their concerns are about either supervising or managing the parenting of a child, or setting up a schedule that will let them see a child on a regular basis.

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

The legislation

Two laws might apply to people other than parents who are asking for guardianship of or contact with children.

  • The Divorce Act: This law applies if the child's parents are married and are already involved in a court proceeding under the federal Divorce Act. However, to make an application under the Divorce Act, you have to get the court's permission first.
  • The Family Law Act: This law applies whether the child's parents are married to each other or not. It also applies whether or not the parents are already involved in a court proceeding under the provincial Family Law Act. You do not need the court's permission to make an application under the Family Law Act, you can just make your application.

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

The Divorce Act

Under section 16.1(1)(b) of the Divorce Act, someone who isn't a "spouse" may ask the court for a "parenting order." A parenting order is an order about "parenting time" with or "decision-making responsibility" for a child. Parenting time usually means how the child's time is divided between their parents, but in this context includes time with someone who isn't a parent. Decision-making responsibility means the responsibility for making decisions on behalf of a child about important things like the child's healthcare or education. (Parenting time and decision-making responsibility are discussed in a lot more detail in the section Parenting after Separation.) To make this application, you must "stand in the place of a parent" to the child or "intend to stand in the place of a parent," and, under section 16.1(3) you must first get the court's permission before you can make your application.

Under section 16.5(1) of the Divorce Act, someone who isn't a "spouse" may also ask the court for a "contact order." A contact order is an order about the time that someone who isn't a parent has with a child. This sounds the same as an order for "parenting time," but there are some big differences. Someone with parenting time with a child has the right to make day-to-day decisions about the child, including emergency decisions, and the right to get information about the child's wellbeing, including about their health and education. Someone with contact, on the other hand, has none of these rights. Contact is just about spending time with the child and nothing else. (Contact is also discussed in the chapter Parenting after Separation.)

Because we're talking about the Divorce Act, a court proceeding must have already started between married spouses, or formerly married spouses, before someone who isn't a spouse can step in and ask for a parenting order or a contact order, or ask to change a parenting order or a contact order. There must be an existing proceeding between spouses in which the person's application can be made.

The Family Law Act

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

In most cases, a child's parents are the child's guardians, which means that normally only a child's parents are entitled to have parental responsibilities and parenting time with the child. However, someone who isn't a parent can ask the court to be appointed as a guardian of a child under section 51 of the Family Law Act. These applications can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. Someone who is applying to become the guardian of a child must fill out a special affidavit required by the Provincial Court (Family) Rules and the Supreme Court Family Rules. The affidavit covers:

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

Someone who is applying to become a guardian must also get a criminal records check, a protection order registry records check, and a records check from the Ministry of Children and Family Development.

People who are a guardian of a child, including people who have been appointed as a child's guardian by court order, may ask the court for an order about the child's "parenting arrangements" under section 45(1) of the act. An order about a child's parenting arrangements is an order about "parenting time" with or "parental responsibilities" for a child. "Parenting time" usually means how the child's time is divided between their parents, but in this context includes time with someone who isn't a parent. "Parental responsibilities" means the responsibility for making decisions on behalf of a child about important things like the child's healthcare or education. (Parenting time and parental responsibilities are discussed in a lot more detail in the section Parenting after Separation.)

Under section 59 of the Family Law Act, someone who isn't a guardian may ask the court for a "contact order." A contact order is an order about the time that someone who isn't a guardian has with a child. This sounds just like an order for "parenting time," but there are some big differences. Someone with parenting time with a child has the right to make day-to-day decisions about the child, including emergency decisions. Someone with contact, on the other hand, does not have this right. Contact is just about spending time with the child and nothing else. (Contact is also discussed in the section Parenting after Separation.)

Under section 149(1) and 149(2)(b) of the act, any person may ask the court for an order that a child's parent, stepparent or guardian pay child support for the benefit of a child to a "designated person," normally the person the child lives with the most. (Child support is discussed in a lot more detail in the Child Support chapter.) The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check, a protection order registry records check or a Ministry of Children and Family Development records check.

If the child's guardians are already in court, a person who isn't a parent of the child can start a court proceeding and ask that the new proceeding be "joined" to the court proceeding between the guardians. They can then ask for orders about guardianship of the child, the child's parenting arrangements, contact with the child or child support for the child.

If the guardians are not already in court, a person who isn't a parent of the child can start a court proceeding against the child's parents or guardians and ask for orders about guardianship, parenting arrangements, contact with the child or child support for the child.

Guardianship, decision-making and parenting time

When grandparents, extended family members and other adults are asking for an order or an award about guardianship, decision-making or parenting time, it's important to know that there is a strong presumption in favour of the wishes of the children's natural or adoptive parents. The court will generally be willing to allow children to remain with their parent or parents unless a strong case can be made that the parents are neglectful and that the children are suffering in their care. To quote from a 1992 Supreme Court case, Reid v. Watts:

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

The Supreme Court of Canada, on the other hand, emphasized the children's best interests a bit more strongly in Racine v. Woods, a case from 1983:

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

Grandparents and other people who are asking for guardianship, decision-making or parenting time will still face a difficult application, especially where the child's parent or parents are still in the picture, even if they have been actively involved in caring for the children themselves. Because actual, concrete harm must usually be shown before grandparents are awarded guardianship, decision-making or parenting time, it can be critical to gather as much documentary evidence as possible. Some helpful sources include:

  • police records,
  • the records of social workers involved with the children,
  • records from the Ministry of Children and Family Development, and
  • a psychologist's report under section 211 of the Family Law Act.

Factors that the courts have taken into consideration in awarding guardianship, decision-making or parenting time to people other than parents have included:

  • the parents' ill-treatment, mistreatment, and neglect of the children,
  • the parents' chronic drug or alcohol use, and having a partying type of lifestyle,
  • the instability of the parents' lifestyle and living situation,
  • the parents' abandonment of their children, or an existing situation in which someone other than a parent has been primarily responsible for the care of the children, and
  • the parents' poor parenting skills.

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

Contact

There's a big difference between asking for guardianship, decision-making and parenting time, and asking for contact. In cases about guardianship, decision-making and parenting time, the courts are concerned with the adequacy of the children's living arrangements and their health and welfare, and the enormous responsibility the court may be giving to someone who is not a parent. In cases about contact, the parents are usually guardians, with parental responsibilities and parenting time, and no one is challenging their ability to manage their children's upbringing. The children are usually well and the parents are doing just fine. As a result, the court will usually place an even greater emphasis on the parent's discretion and judgment.

Grandparents and other people do not have a presumptive entitlement to contact with children under either the Divorce Act or the Family Law Act, but they can certainly ask for an order that they have contact. The 1993 Supreme Court case of Chapman v. Chapman discussed the general rules governing applications for contact by people other than parents:

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

Where both parents are still in the picture and have already been arguing about how the child's parenting time will be divided between them, the court will usually require that any contact allowed to grandparents and other family members will be carved out of the child's time with the parent who is their relative. In other words, maternal grandparents will usually have contact during the mother's parenting time with the child, and paternal grandparents will have contact during the father's parenting time with the child. The Provincial Court decision in N.H. v. D.H., a case from 2013, is a good example about how the court thinks about contact.

As with applications for guardianship, decision-making or parenting time, grandparents and other people shouldn't be discouraged by the generally pessimistic tone of this discussion. There are lots of cases in which grandparents have been awarded time with their grandchildren; it is possible to succeed on an application for contact!

Child support

When someone other than a parent has an order that results in the child living mostly with them, that person can ask that the child's parents or guardians pay child support to them. The same rules about child support that apply to cases between parents and guardians apply to cases where someone other than a parent is asking for child support, except that grandparents, extended family members and other people can only ask for child support under the Family Law Act; they cannot apply under the Divorce Act.

Grandparents can also ask for financial support from the provincial government to help meet the cost of caring for any grandchildren in their care. The province of British Columbia pays grandparents who are looking after their grandchildren at the same rate as foster parents. It's not a huge sum, but it's better than nothing.


Resources and links

Legislation

Resources

Links

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 10 August 2022.


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