Children and Parenting after Separation

When a couple involved in a family law dispute have children, they must make decisions about four important issues:

• where the children will live,
• how parenting decisions will be made,
• how often each person 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 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.

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,
• guardianship and contact,
• custody and access,
• making changes to orders and agreements involving children, and
• the problem of estrangement and alienation.

Other legal issues relating to children, such as family violence, naming, and adoption are discussed in other sections.

Important changes
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

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.

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 the conflict between their parents,
• how to develop parenting plans, and
• how to locate resources that are available to separating and separated parents.

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?

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.

The Divorce Act and 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.

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 Jirh v. Jirh, 2014 BCSC 1973. Another good summary is found in B.D.M. v. A.E.M., 2014 BCSC 453.

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.”

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

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.

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.

Custody and access

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.

Important changes
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.

Guardianship and parental responsibilities

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.

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.

Someone who isn't a parent can usually only be appointed as the guardian of a child by a court order.

Parenting time and contact

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 schedule of a child's time with someone who isn't a guardian is called contact.

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.

Section 16 of the Divorce Act is about custody and access and says this:

(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.

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:

(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.
[emphasis added]

(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.

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 account a whole range of factors, including some of the following:

• 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?
• What plans do the parents have to look after and care for the child?
• How well can the parents cooperate and communicate with each other?
• How will the order proposed by the applicant affect the child?
• Will the proposed order be 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 proposal disrupt the child's schooling, or take the child away from their friends and family?

You should bear in mind these quotes from Mr. Justice Spencer in Tyabji v. Sandana, 1994 CanLII 410 (BC SC), a 1994 decision of the British Columbia Supreme Court:

"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."

"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."

Important changes
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:

1. people who are parents under an assisted reproduction agreement, and
2. 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.

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

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.

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

(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.

Important changes
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

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.

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.”

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.

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.

Examples of Parenting Arrangements

Parallel parenting or silo parenting

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

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

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

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

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

Birdnesting

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

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

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

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

Contact under the Family Law Act

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.

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.

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.

It is very important to understand that a person's contact with a child is entirely separate from their obligation to pay child support.

Reports and assessments

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.

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 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.

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.

Needs of the child assessments

Section 211 of the Family Law Act allows the court to order an assessment of:

1. the needs of a child,
2. the views of a child, and
3. 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).

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.

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.

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.

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 Supreme Court discussed the purposes of custody and access reports in a 2001 case called 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):

"[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."

A more recent case called Smith v. Smith, 2014 BCSC 61 discusses why needs of the child assessments should be ordered.

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.

Family justice counsellors

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.

Because of demand, assessments prepared by family justice counsellors may take up to a year to complete.

Psychologists and counsellors

Assessments are also prepared by privately retained mental health professionals. Assessments prepared by a psychologist usually include psychological testing.

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.

Views of the child reports

Section 37(2)(b) of the 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.

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.

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.

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.

Family justice counsellors

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.

Psychologists and counsellors

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.

Children's caregivers and extended family

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.

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:

• where one or both of the guardians of the children are dead,
• where one or both of the guardians have abandoned the children or the care of the children,
• where there are serious concerns about the fitness of the guardians to care for the children, or
• where they are being denied time or involvement with the children.

Their concerns are usually about:

• getting or maintaining contact with the children,
• 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, 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."

Legislation

Two laws might apply to non-parents seeking guardianship of or contact with children.

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.

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.

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.

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.

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 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 that might affect the child, and
• any previous civil or criminal court proceedings related to the best interests of the child.

Applicants must also get a new criminal records check, and a records check from the Ministry of Children and Family Development (MCFD).

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.

Custody and guardianship

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, Reid v. Watts, 1992 CanLII 916 (BC SC), Vancouver Registry No. A913221:

"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 emphasized the children's best interests a bit more strongly in Racine v. Woods, [1983] 2 SCR 173, 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."

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:

• police records,
• the records of social workers involved with the children,
• files from the Ministry for Children and Families, and
• a psychologist's report.

Factors that the courts have taken into consideration in awarding custody to a non-parent have included:

• ill-treatment, mistreatment, and neglect of the children,
• chronic drug or alcohol use, a partying type of lifestyle,
• instability of the guardians' 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
• poor parenting skills on the part of the guardian.

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 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 parental responsibilities.

Access and 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.

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 Chapman v. Chapman, 1993 CanLII 2598 (BC SC) sets out the general rules governing applications for access or contact by non-parents:

• The burden is on the non-parent to show that the proposed access or 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.
• 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.
• 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.

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 N.H. v. D.H., 2013 BCPC 413.

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 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.

Financial support

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.

Resources and links

Legislation

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

Links

• Ministry of Attorney General's website "Criminal Record Check BC"
• Canadian Police Information Centre (CPIC)
• Grandparents Raising Grandchildren Support Line
• Clicklaw Common Question on Benefits for Grandparents Raising Grandchildren
• Dial-A-Law Script "Custody and Access, Guardianship, Parenting Arrangements and Contact"
• Legal Services Society's Family Law website's information page "Children"
• Legal Services Society's Family Law website's information page "Parenting & Guardianship"
• Legal Services Society'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 Mary Mouat, QC and Samantha Rapoport, April 15, 2019.

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