Parenting Orders, Guardianship, and Contact (3:XI)

A. General

Disputes over custody of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Custody decisions can always be changed, however, courts rarely make such changes. Thus, the decision about who gets interim custody is particularly important. Children usually stay with the parent who has provided primary care in the past and who can spend the most time with them. Sometimes, courts will order joint custody on an interim basis so that neither parent’s position is prejudiced.

The best interests of the child is the only consideration in determining custody and access and parenting arrangements.

In addition to custody, courts can also make decisions regarding guardianship of minor children. Guardianship gives a parent or other person “a full and active” role in determining the course of a child’s life and upbringing (see e.g. Charlton v Charlton, [1980] BCJ No 22). There is considerable overlap between the two, but it is useful to note that while having custody usually includes having guardianship, the reverse is often not true. This distinction is impacted somewhat by the FLA as the term “Guardianship” subsumes all the rights and responsibilities of a parent and there is no longer reference to “Custody”.

The case law on custody and guardianship has developed to the point where there is a presumption in favour of joint custody and joint guardianship (although there is no legislative presumption). A parent seeking sole custody will generally have to show that there is a serious defect in the other person’s parenting skills, that the other person is geographically distant, or that the parents are utterly unable to communicate without fighting before the Court will consider granting such an application, and in the last case, the Court may explore other options such as Parenting Coordination or parcelling out decision making and responsibilities to address the communication issue instead of granting sole custody to one parent.

B. Legislation

1. Divorce Act

The DA only speaks of access and custody. Under s 16, the Supreme Court may make an order for custody. This order will supersede any existing FLA orders, which cover custody, access, and guardianship, and can be registered for enforcement with any other Superior Provincial Court in Canada. The Supreme Court can also grant interim custody before a divorce action is heard.

The DA applies only to married couples. Under the Act, the person making the application for custody must have been “habitually resident” in the province for at least one year prior.

2. Family Law Act

Among a plethora of changes to the general family law in BC, the Act makes the following changes to the law surrounding guardianship:

• Replace the terms “custody” and “access” with “guardianship”, “parenting time”, and “contact”.
• Define “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements.
• Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.
• Under the FLA, the terms custody and access are no longer used – only guardianship will be considered.
• Additionally, the “best interests of the child” is no longer the paramount consideration under the FLA; it is the only consideration.

C. Courts

1. Supreme Court

The Supreme Court has jurisdiction to deal with all matters relating to custody, guardianship and access to children, pursuant to the DA, the FLA, and the CFCSA. Although, the Court almost never deals with the CFCSA unless there is the matter of adoption to be considered. The Supreme Court also has jurisdiction over orders restraining contact or entry to the matrimonial home.

The Supreme Court has parens patriae jurisdiction over all children in the province. In operation, this can allow the Court to transcend the statutory letter of the law in drafting orders that best represent the best interests of the child.

A written agreement about custody or guardianship may be given the force of a court order under section 44 of the FLA. Under the FRA, the relevant sections were 121 and 122. Any orders made under the FRA are still in force. An order made under the DA can be registered for enforcement in any other province’s Supreme Court registry.

2. Provincial Court

The Provincial Court has jurisdiction to deal with all matters relating to custody, guardianship and access to children, and the Child, Family and Community Service Act. This includes restraining orders but does not include orders restraining entry to the matrimonial home. A written agreement about custody or guardianship may be given the force of a court order, or s 44 of the FLA, if it is filed in court.

D. Custody

Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the Family Law Act is in force, do not need special transition sections. Section 4 of the Interpretation Act provides a default rule that the Act will be used upon it becoming effective, so cases started under the Family Relations Act will be determined under the Family Law Act.

In the absence of a court order or a written agreement, custody of a child remains with the person with whom the child usually resides. One must bear in mind that the Act does not touch on day-to-day life until it is invoked, usually by filing a lawsuit or by making an application.

1. Factors in Awarding Custody

The factors that the Court must consider in determining the “best interests of the child” are set out in, s 37 of the FLA:

• (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.

and at s 16(8-10) of the DA:

• (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.
• (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
• (10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

It is important to note that these factors should not be viewed like a checklist or a firm “rubric” with solid weights for each point. Rather, the discretionary, contextual, and complex nature of custody cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interests argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.

The Court will generally consider the child’s health and emotional well-being, his or her education and training and the love, affection and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a custody order relating to a teenager to be practical, it must reasonably conform to the wishes of the child (O’Connell v McIndoe (1998), 42 R.F.L. (4th) 77 (BCCA), Alexander v Alexander (1988), 15 R.F.L. (3d) 363 (BCCA)).

Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality and moral fitness of each parent. However, there is no presumption against the separation of siblings (P (AH) v P (AC), 1999 BCCA 203). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also considers psychological, spiritual, and emotional factors (King v Low,(1985), 44 R.F.L. (2d) 113 (SCC)). The Court will take into account the personality, character, stability, and conduct of a parent, if appropriate (Bell v Kirk (1986), 3 R.F.L. (3d) 377 (BCCA)).

Agreements between parties regarding custody do not oust the Court’s jurisdiction. An agreement is important, but only one of several factors to be taken into consideration when determining the best interests of the child. The degree of bonding between child and parent is also taken into consideration. The biological link does not outweigh other considerations, but when all other factors are equal, the custody of the child is best served with the biological parents (L (A) v K (D),2000 BCCA 455; H (CR) v H. (BA), 2005 BCCA 277).

Race and aboriginal heritage are relevant considerations, but neither is determinative of custody alone. The importance of race differs in adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to his or her race or culture (Van de Perre v Edwards, 2001 SCC 60). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests (H (D) v M (H), [1997] BCJ No 2144 (QL) (SC)).

Clients may wish to vary a custody order. The threshold for a variation of a custody or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents (Gordon v Goertz, 2001 BCSC 649).

Section 211 of the FLA allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over custody is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an FLA Section 211 report (Gupta v Gupta, 2001 BCSC 649).

2. Types of Custody Orders

Note: “Custody” is a term that only appears in the DA and so only applies to claims that are proceeding in Supreme Court under the DA.

a) Interim Orders

An interim order is a temporary order made once the proceedings have commenced but before the final order is pronounced. Courts will usually make interim custody orders while an action in divorce is underway, with an eye to the child’s immediate best interests. Courts tend to favour stability, so an interim order is likely to favour the party with custody at the time of the marriage breakdown. This presumption toward stability can give an interim order substantial weight in determining a final custody order.

b) Sole Custody

Sole custody, in which one parent provides the primary residence and is mostly responsible for day-to-day care, can be granted in cases where the parents request such an arrangement, where they live far apart, or where relations between the parties are so poor as to preclude cooperation.

Note: The concept of “full custody” does not exist. A parent using this term is most likely referring to sole custody.

c) Joint Custody

In joint custody, both parents have custody of the child. While the child may reside primarily with one parent, the parents cooperate in raising the child, acting as both joint custodians and joint guardians of the child. In British Columbia, there is a presumption toward joint custody.

d) Shared Custody

“Shared custody” is a term used by the Federal Child Support Guidelines, but not by either the DA or the FLA. Shared custody is a form of joint custody in which the child spends an almost equal time with each parent. Typically, the child would switching homes on a frequent basis, such as every few days or once a week. This usually requires that the parents live near one another and have good communication skill. It also requires that the child is able to adapt to living in two homes. Any agreement for shared custody will affect child support.

e) Split Custody

“Split custody” is a term used by the Federal Child Support Guidelines, and not by either the DA and the FLA. On rare occasions, courts will order siblings to live with separate parents. This is usually a drastic solution, ordered only after a FLA section 211 report (a court-ordered report respecting the needs of a child, the views of a child, and the ability and willingness of one of the parents to satisfy the needs of a child) is submitted to the Court. A split custody order will affect child support.

3. Other Custody Issues

a) Consent Orders

Where there is agreement on the terms of support or custody provisions, but no written agreement, a consent order may be made by the Court under s 219 of the FLA if the written consent of the party against whom the order is to be enforced has been obtained. The order can extend only to the terms consented to.

b) Enforcement of Custody Orders

Where a custody order is in force, the Court may make an order prohibiting interference with a child. The Court may further order sureties and/or documents from the person against whom the order is made, and require that person to report to the Court for a period of time (FLA, s 183).

Under the FLA, police officer enforcement clauses can only be granted when there has been a breach of an order (s 231).

A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the FLA, s 188 that carries a possibility of criminal proceedings (Criminal Code, RSC 1985, c C-46, ss 280-281). The Criminal Code makes it an offence for a non-custodial parent to abduct a child. Where a custody order is in effect, abduction amounts to contempt of Court.

c) Parental Mobility (Under the FLA, this is referred to as Relocation which has separate considerations from that of Mobility under the DA)

Relocation is defined and explained under Division 6 of the FLA. It considers relocation of a child that can reasonably be expected to have a significant impact on the child’s relationship with his/her guardian(s) or other adults with which the child has a significant relationship (s 65). The guardian intending to relocate with the child must provide 60 day written notice to all other guardians and persons having contact with the child (s 66). The notice must include the date of the relocation, and the name of the proposed location. Exemptions to these requirements can be granted by the Court if they are satisfied that the notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child (s 66(2)).

The child’s other guardian(s) can object to the relocation within 30 days of receiving the notice. If an objection is made, the guardian requesting the relocation must satisfy the court that (s 69(4)(a)):

• (i) the proposed relocation is made in good faith, and
• (ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life

When considering the good faith requirement, the Court must consider (s 69(6)):

• (a) the reasons for the proposed relocation;
• (b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
• (c) whether notice was given under section 66 [notice of relocation];
• (d) any restrictions on relocation contained in a written agreement or an order.

Issues of parental mobility may arise in conjunction with custody issues. That is, one parent may wish to relocate away from another parent with whom they share custody. In Gordon v Goertz, [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the DA. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views.

One v One, 2000 BCSC 1584, also a DA case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests:

1. the parenting capabilities of and the child’s relationship with parents and their new partners;
2. employment, security and prospects of the parents and, where appropriate, their partners;
3. access to and support of extended family;
4. the difficulty of exercising the proposed access and the quality of the proposed access if the move is allowed;
5. the effect of the move on the child’s academic situation;
6. the psychological and emotional well-being of the child;
7. the disruption of the child’s existing social and community support and routine;
8. the desirability of the proposed new family unit for the child;
9. the relative parenting capabilities of either parent and the respective ability to discharge parenting responsibilities;
10. the child’s relationship with both parents;
11. the separation of siblings;
12. the retraining or educational opportunities for the moving parent.

E. Access

"Access" is the term under the DA. Under the FLA, it is called "Parenting Time" for guardians, or "Contact" for non-guardians.

Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the Family Law Act is in force, do not need special transition sections. Section 4 of the Interpretation Act provides a default rule that the Act will be used upon it becoming effective, so cases started under the Family Relations Act will be determined under the Family Law Act.

Unless a parent poses a risk to the safety or well-being of the child, he or she will usually be allowed access or visiting rights. Courts can make an order for access and may view a custodial parent who denies access as acting against the best interests of the child.

NOTE: It is important to note that access is a distinct and separate issue from child support. Denial of access is not grounds to withhold support; nor is a failure to pay support grounds for withholding access.

1. Factors Considered in Making an Access Order

The overriding principle remains the best interests of the child. The courts will not be bound by the wishes of the child, although the child’s views can be a powerful factor. When the FLA came into force, it introduced an overarching consideration “to ensure the greatest possible protection of the child’s physical, psychological, and emotional safety.” It can be argued that this consideration is functionally in place already, however. The courts will look into several factors in making access orders. These include:

• The age of the child: older children will be allowed longer visits, but courts will also consider the wishes of children over 12 who may not wish to see the non-custodial parent;
• Distance between homes: if the distances are great, courts may order longer stays;
• Conduct of the non-custodial parent: access can be denied for reasons such as alcoholism, abuse, past attempts to abduct the child, or attempts to alienate the child from the custodial parent;
• Health of the non-custodial parent: if health problems limit the non-custodial parent’s ability to care for the child, access may be limited;

2. Types of Access Orders

a) Interim Orders

After making an interim custody order, a court will often grant access on an interim basis. Usually, such an order will favour the status quo, so as to minimize disruption for the child.

b) Specified and Unspecified Access

Specified orders set out the times and places at which the non-custodial parent must have access to the child. Specified orders are generally preferred. Unspecified access is less common and is ordered when the parents are willing to accommodate one another.

c) Conditional Access

Courts may impose requirements, such as not smoking or using drugs or alcohol in the presence of the child. If the parent fails to meet the condition, access may be denied.

d) Supervised Access

Courts may order visits to be supervised by a designated third party if there are concerns about abuse, abduction, mental and physical handicaps or attempts to alienate the child from the custodial parent. It is up to the custodial parent to demonstrate that access should be supervised.

NOTE: There are no filing fees nor does a person need legal representation in Provincial Court, making it a more accessible option for many clients.

3. Extra-provincial Custody and Access Orders

Under the FLA, the Court may exercise its jurisdiction to make custody and access orders if one of the following conditions is met:

1. the child was “habitually resident” in BC (s 74(2)(a)).
2. If the child is not habitually resident in B.C., the Court must at the commencement of the application order be satisfied that (s 74(2)(b)):
   • i. the child is physically present in British Columbia when the application is filed,
   • ii. substantial evidence concerning the best interests of the child is available in British Columbia,
   • iii. no application for an extraprovincial order is pending before an extraprovincial tribunal in a place where the child is habitually resident,
   • iv. no extraprovincial order has been recognized by a court in British Columbia,
   • v. the child has a real and substantial connection with British Columbia, and
   • vi. on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia;
3. the child is physically present in British Columbia and the court is satisfied that the child would suffer serious harm if the child were to (s 74(2)(c))
   • i. remain with, or be returned to, the child's guardian, or
   • ii. be removed from British Columbia.

B.C. courts are required to enforce extra-provincial orders (s 75) with certain exceptions (s 76). Such exceptions include the child would suffer serious harm if he/she was returned to the guardian or leaving British Columbia (s 76(1)(a)).

If one spouse is not in B.C., the only B.C. Court that the B.C. residing spouse can proceed in is the B.C. Supreme Court, because the Provincial Court has no jurisdiction outside of the province.

F. Guardianship

Guardianship may be the most important aspect of any legal arrangements concerning the care and control of the children. Guardianship encompasses the whole bundle of rights and obligations involved in parenting a child, including making decisions about the child’s school, moral instruction, religion, health care, dental care, extracurricular activities, etc.

When they are still together, parents are presumed to be joint guardians, playing a “full and active role” in the upbringing of the child (see e.g. Charlton v Charlton). Upon marital breakdown, this can change either by agreement, by order of the Court, or by the operation of section 39 of the FLA, which defines whether someone is a guardian.

Under the FLA, guardianship is primarily governed by sections 39, 41, and 42.

Parents can also appoint a guardian in a will. If the parents are both dead or have abandoned the child,the Public Guardian and Trustee becomes the child’s guardian.

While a child’s parents are living together and after the child’s parents separate, each parent of the child is the child’s guardian (s 39). However, an agreement may be made to provide that a parent is not the child’s guardian. A parent who has never resided with a child is not the child’s guardian unless there is an agreement made under section 30 of the FLA, the parent and all of the child’s guardians make an agreement providing that the parent is also a guardian, or the parent regularly cares for the child. Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship.

Section 41 of the FLA lists out the parental responsibilities with respect to a child:

• (a) making day-to-day decisions affecting the child and having day-to-day care, control and supervisionof 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 toreceive;
• (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.

Section 42 of the FLA defines parenting time as time that a child is with a guardian. During this parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

Additionally, Division 6 of Part 4 of the new FLA states that if you are a child’s guardian and you want to relocate with the child, you must give any other person who can contact the child 60 days’ notice which includes both the date of the relocation and the name of the proposed location. The Court may not grant an exemption to give notice if it is satisfied that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child. Once notice is given, a child’s guardians and persons having contact with the child must use their best efforts to resolve any issues relating to the proposed relocation. The proposed relocation may occur unless another guardian of the child files an application to prohibit the relocation within 30 days of receiving notice. The Court will make its decision based on s 37 of the FLA considering what would be in the best interests of the child.

1. Guardianship

a) Sole Guardianship

Sole Guardianship and Joint Guardianship are not terms used in the FLA. The parents or a court may decide that one parent should be the sole guardian. This terminates the presumption of guardianship for the other parent. This is an extreme step, taken only when one parent has been shown to be either uninterested in or incapable of proper parenting.

b) Joint Guardianship

A court will order or the parents will agree to joint guardianship, setting out the party’s duties to one another in some detail. The standard arrangement under the FLA, set out below, is known as the Joyce Model, a set of rules frequently incorporated in court orders and separation agreements, despite not being explicitly cited by the new act or its interpretors.

The parties are to share joint guardianship of the child, defined as follows:

• a) the parents are to be the joint guardians of the estate of the child;
• b) in the event of the death of either parent, the remaining parent will be the sole guardian of the person of the child;
• c) the parent who has the primary responsibility for the day-to-day care of the child will have the obligation to advise the other parent of any matters of a significant nature affecting the child;
• d) the parent who has primary care will have the obligation to discuss with the other parent any significant decisions which have to be made concerning the child, including significant decisions concerning the health (except emergency decisions), education, religious instruction, and general welfare of the child;
• e) the parent who does not have primary care will have the obligation to discuss the foregoing issues with the parent and each parent shall have the obligation to try to reach agreement on those major decisions;
• f) in the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, the primary care parent shall have the right to make such decision;
• g) the other parent shall have the right to seek a review of any decision which that parent considers contrary to the best interest of the child; and
• h) each parent will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers.

Under the FLA, the standard Guardianship provisions have changed somewhat to reference the sharing of responsibilities set out at Section 41 of the FLA with a decision making clause in the event that the parties cannot agree on how to exercise a particular responsibility.