Children and Parenting after Separation

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

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

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

• the rights of children and youth in family law disputes between their parents,
• parenting apart,
• the basic principles of parenting after separation, including guardianship, parenting arrangements and contact under the Family Law Act, and parenting arrangements and contact under the Divorce Act,
• what happens when a parent wants to move away after separation, with or without a child,
• children who resist seeing a parent after separation, and
• making changes to orders, awards and agreements about children.

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).

• The website counsellingbc.com offers a list of subscribing counsellors by area of practice.
• The BC Association of Clinical Counsellors also maintains a referral list of its members.
• The BC Association for Marriage and Family Therapy has a referral list and helpful information about how to choose a counsellor.
• The website findasocialworker.ca, from the BC Association of Social Workers, has a tool to find a social worker.

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

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

Resources

• Legal Aid BC's Early Resolution Centre website

Links

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

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

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