Difference between revisions of "Children and Parenting after Separation"

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 [http://canlii.ca/t/gf1gz Jirh v. Jirh]'', 2014 BCSC 1973 and another good summary is found in B.D.M. v. A.E.M., 2014 BCSC 453 http://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc453/2014bcsc453.html?resultIndex=1.  

The ''Family Law Act'' talks about people who are ''guardians''. Guardians are usually, but not always, the parents of a child, including 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.

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.

You should bear in mind these quotes from Mr. Justice Spencer in ''[http://canlii.ca/t/1dll3 Tyabji v. Sandana]'', 1994 CanLII 410 (BC SC) a 1994 decision of the British Columbia Supreme Court:

Under s. 39 of the ''[[Family Law Act]]'', while parents are living together and after they separate, both of them are presumed to 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:

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.

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 controled how often a parent could see his 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. http://www.canlii.org/en/bc/bcca/doc/2015/2015bcca220/2015bcca220.html?resultIndex=1

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.

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 non-exhaustive list of parental responsibilities are set out in s. 41 of the ''Family Law Act'', as follows:

* (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;

* (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;

** (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.

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 a child is entirely separate from his or her 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''' ===