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{{Dial-A-Law TOC|expanded = family}}
{{Dial-A-Law TOC|expanded = family}}
For couples that are thinking about separating or have already separated, the continued parenting of the children is often the biggest concern. This script discusses custody and access under the ''Divorce Act'' and guardianship, parenting arrangements and contact under the ''Family Law Act''. It applies to anyone who is a parent, regardless of the nature of the parents’ relationship with each other.
When a couple separates, they must decide on the care of their children. There are two laws and a host of legal concepts that deal with the issues in play.  


==Which law applies?==
==Understand the legal framework==
Both the federal Divorce Act and the provincial ''Family Law Act'' talk about the care of children when their parents have separated. The ''Divorce Act'' only applies to parents who are or were married to each other. The ''Family Law Act'' applies to all parents, whether they were in married or unmarried spousal relationship, were in a dating relationship or were not in any relationship.


==What does “custody” mean?==
===Two laws deal with the care of children===
Custody is a term used by the ''Divorce Act''. It means the right to exercise a parent’s authority over a child and includes the right to say how a child is raised and make decisions on behalf of the child, like where the child goes to school, how the child gets treated when sick and what sports the child plays.
When a couple separates, they must decide where the children will live, how parenting decisions will be made, and how often each person will see the children.


==What are the different ways to decide custody?==
There are two laws that deal with these issues, the federal ''[http://canlii.ca/t/7vbw Divorce Act]'' and BC’s ''[http://canlii.ca/t/8q3k Family Law Act]''. The ''Divorce Act'' applies to parents who were married to each other. The ''Family Law Act'' applies to all parents, whether they were in a married or unmarried spousal relationship, were in a dating relationship, or were not in any relationship.
Parents can have custody of a child after they separate; this is called “joint custody”; or when only one parent has custody of a child, it is called “sole custody”. When a parent has sole custody, only that parent has parental authority over the child.


Custody is usually resolved by a written agreement between the parents or by going to court and applying for an order about custody. Most of the time, parents have joint custody of their child. Joint custody does not mean that the child’s time is divided equally between the parents, although that is a common way of distributing children’s time between parents, but it does mean that the parents have to work together when making decisions about the child.
Under both laws, if the couple cannot agree about where the children will live or how much time each will have with the children, the couple can ask a court to decide. Whenever a court considers issues like these, the court's primary concern is the '''best interests of the children'''.


Sole custody can be awarded to a parent if: there has been family violence; the other parent has drug or alcohol problems; the parents are constantly arguing with each other about parenting decisions; the other parent has been absent from the child’s life; or for other similar reasons.
===Custody and access===
The ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec16subsec1_smooth Divorce Act]'' talks about the care of children in terms of custody and access.  


==What does “access” mean?==
'''Custody''' means the right to have a child with you and the right to make decisions about how the child is cared for and raised.  
Access is a term used by the ''Divorce Act''. It usually refers to the visitation schedule of the parent with the least amount of time with the children.  


A parent’s access agreement or order can sometimes contain conditions that the parent do or not do something during the access visit, such as smoking, drinking alcohol or driving with the child in the car. Access that depends on certain conditions of a parent’s behaviour is called “conditional access”.
Parents can share custody of a child after they separate; this is called “'''joint custody'''”. When only one parent has custody of a child, it is called “'''sole custody'''”.


Where there is a serious risk to the safety of the child, a parent’s access can be subject to the requirement that the access occur in the presence of another adult. This is called “supervised access”.
Most of the time, parents have joint custody of their child. Joint custody does not mean the child’s time is divided equally between the parents (although that is a common way of distributing children’s time between parents), but it does mean the parents have to work together when making decisions about the child.


==How is access decided?==
Sole custody might be awarded to a parent in situations where there has been family violence, the other parent has drug or alcohol problems, or the other parent has been absent from the child’s life.
Access is settled the same way as custody – either by court order, written agreement or the parents’ informal arrangements. When parents must go to court, the court will make a decision based on the best interests of the child. The court’s only concern is the best interests of the child and choosing the access arrangement that is best for the child.


==What does “guardianship” mean?==
'''Access''' is about the child's schedule of time with their parents. It often refers to the visitation schedule of the parent with the least amount of time with the children.
Guardianship is a term used in the ''Family Law Act''. Guardians are the people, usually parents, who are responsible for a child’s upbringing and wellbeing. Guardians exercise “parental responsibilities” and have “parenting time” with a child, which will be discussed in a moment.
Where there is a serious risk to the safety of the child, a parent’s access can be subject to the requirement that the access occur in the presence of another adult. This is called “'''supervised access'''”.


==Who is a guardian?==
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.
The ''Family Law Act'' says that parents who live together are presumed to be the guardians of their child, during their relationship and after they separate. A parent who never lived with his or her child is not presumed to be a guardian of the child unless:


*the parent “regularly cares” for the child;
===Guardians and guardianship===
*the person is a parent because of an assisted reproduction agreement; or
The ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec39_smooth Family Law Act]'' talks about people who are '''guardians'''. Guardians are usually, but not always, the parents of a child. Guardians generally, but not always, have '''parental responsibilities''' for a child, which means they can make decisions for and about a child.  
*the parent and all of the child’s guardians make an agreement that the parent will be a guardian.  


Someone who is not a guardian can become a guardian by a court order appointing him or her as a guardian or by being appointed a guardian on a guardian’s death or incapacity or, in the case of a parent, by agreement if the other guardians agree.
====Who can be a guardian====
Under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec39_smooth Family Law Act]'', while a child’s parents are living together and after they separate, each parent is presumed to be the child’s guardian.  


==How do you apply to be appointed as a guardian?==
A parent who has never lived with their child is not the child’s guardian unless one of the following applies:
Only people who aren’t already guardians because of the presumptions in the ''Family Law Act'' may apply to court to be appointed as the guardian of a child. People applying for appointment as a guardian must complete a special form of affidavit required by the rules of court. This affidavit requires you to get: a criminal records check; a protection order registry check and a records check from the Ministry for Children and Family Development; provide the details of any court proceedings that are relevant to the child’s best interests; and, provide information about the children that are and have been in your care.
*the parent regularly cares for the child,
*the parent and all of the child’s guardians make an agreement providing that the parent is also a guardian, or
*they are a parent under a written agreement providing for the child’s birth through assisted reproduction.


==How do you appoint someone as guardian upon your death or incapacity?==
Someone can also become a guardian through a guardian’s will or an appointment when a guardian dies or becomes incapacitated. Or someone can apply to court to become a guardian.  
A guardian can appoint another person to become the guardian of his or her child upon death by will or by Form 2 of the ''Family Law Act Regulation''. A guardian who is facing a terminal illness or a permanent mental incapacity can appoint another person to become a guardian when he or she is no longer able to act as guardian using Form 2.


A guardian cannot appoint a guardian with more parental responsibilities than those that she or he has at the time of the appointment.
====Applying to become a guardian====
If you apply to court to become a guardian, the [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec51_smooth law in BC] requires you to provide certain information about why the order would be in the best interests of the child. You must complete a special '''affidavit''' (a legal document where you make statements about facts you say are true), get a criminal records check, a records check from the child welfare authorities, and provide certain information about any children that are and have been in your care.


==What do “parental responsibilities” and “parenting time” mean?==
===Guardians generally have parental responsibilities===
Parental responsibilities is a term used in the ''Family Law Act''. It refers to guardians’ responsibility for making decisions about how the child is nurtured and raised, and the duty of making those decisions in the best interests of the child.  
Guardians generally, but not always, have parental responsibilities for a child.  This means they have the responsibility to decide how to raise the child, based on the child’s best interests. Parental responsibilities include deciding where the child lives and goes to school, how the child gets treated when sick, and giving or withholding permission on behalf of the child.


Parenting time is another term used in the ''Family Law Act''. The time a guardian has with a child is called parenting time. During a guardian’s parenting time, the guardian is responsible for the care of the child and decision-making about day-to-day matters involving the child.
====Parental responsibilities can be shared====
Parental responsibilities can be shared between two or more guardians, which usually means they are all responsible for making decisions about the child and must make those decisions in consultation with one another. Parental responsibilities also can be allocated among guardians, so that a guardian has sole responsibility for certain kinds of decisions, like about health care or schooling, and can make those decisions without having to consult the other guardians.


People who are not guardians, including parents who are not guardians, do not have parental responsibilities or parenting time.
====Parenting time and contact====
The time a guardian spends with a child is called '''parenting time'''. During a guardian’s parenting time, the guardian is responsible for the care of the child and making decisions about day-to-day matters involving the child.


==How are parental responsibilities and parenting time decided?==
'''Contact''' is the time that someone who is not a guardian has with a child. Parents who are not guardians may have contact, as might grandparents, aunts and uncles, other family members or any one else who has an important relationship with a child.
Parental responsibilities and parenting time are decided either by a court order or the written agreement of the child’s guardians. Where guardians must go to court, the court will make a decision based only on the best interests of the child. The court’s only concern is the best interests of the child.


Parental responsibilities can be shared between two or more guardians, which usually means that they are all responsible for making decisions about the child and must make those decisions in consultation with one another. Parental responsibilities also can be allocated among guardians, so that a guardian has sole responsibility for certain kinds of decisions, like about health care or schooling, and can make those decisions without having to consult the other guardians.
===How parental responsibilities and parenting time are decided===
After they separate, a child’s guardians may be able to reach an agreement about parental responsibilities and parenting time. They may decide to make this agreement formal. This is called a '''separation agreement'''.


The arrangements made in an agreement or order for parental responsibilities and parenting time are known as “parenting arrangements”.
If they can’t agree, the guardians can ask a court to decide. The court will make a decision based on what’s best for the child. The court’s only concern is the best interests of the child.


==What is “contact”?==
The arrangements made in an agreement or court order for parental responsibilities and parenting time are known as “'''parenting arrangements'''”.
Contact is a term used in the ''Family Law Act''. Contact is the time that someone who is not a guardian has with a child. Parents who are not guardians may have contact, as might grandparents, aunts and uncles, other family members or any one else who has an important relationship with a child.


==How is contact decided?==
==Common questions==
Contact is decided the same way as parenting time – either by a court order or by the written agreement of the person with contact and the child’s guardians. When people must go to court, the court will make a decision based only on the best interests of the child. The court’s only concern is the best interests of the child.


==Can a child decide whom to live with?==
===Can a child decide whom to live with?===
The ''Family Law Act'' requires that a child's views be considered, unless it would be inappropriate to do so.
The ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec37_smooth Family Law Act]'' requires that a child's views be considered, unless it would be inappropriate to do so.  
If a child is old enough and mature enough, the judge will consider the child’s wishes when determining arrangements for custody, parenting time and contact. The importance given to the child’s views will depend on the age and maturity of the child, the reason why the child wishes to live with a particular person, and how strongly the child feels about wanting to live with that person. But there is no particular age at which children have the right to decide who they will live with. However, in general the older the child is, the more weight the court will give to the child’s wishes. Usually, the wishes of a child over age 12 are taken into consideration, and an older teenager’s wishes are likely to be decisive.


==What about “needs of the child assessments”?==
If a child is old enough and mature enough, the judge will consider the child’s wishes when determining arrangements for custody, parenting time and contact. The importance given to the child’s views will depend on the age and maturity of the child, the reason why the child wishes to live with a particular person, and how strongly the child feels about wanting to live with that person.
Section 211 of the ''Family Law Act'' allows the court to order an assessment, prepared by a social worker, a psychologist, a psychiatrist or another mental health professional, of:


*the wishes of a child;
There is no particular age at which children have the right to decide who they will live with. In general, the older the child is, the more weight the court will give to the child’s wishes. Usually, the wishes of a child over age 12 are taken into consideration, and an older teenager’s wishes are likely to be decisive.
*the needs of a child; and,
*the capacity of a person to meet the child’s needs.


These assessments will usually make recommendations about the sort of parenting arrangements and contact that the assessor considers to be in the best interests of the child.
===How are a child’s wishes considered?===
If issues about the care of a child who is at least six years old are disputed, a judge may ask a professional with special training to prepare a report on the child’s wishes. These professionals may be a family justice counsellor, parenting coordinator, social worker, psychologist, counsellor, or a lawyer with special training. Many parents also agree to have a report done privately without a court order.


These assessments are known as needs of the child assessments. (Under the old ''Family Relations Act'', these were known as “section 15 reports” or “custody and access reports”.) They can cost $5,000 or more. A report can also be prepared for free by a Family Justice Counsellor, but it may take eight months or longer to complete.
There are two main types of reports:
*A “'''hear the child report'''” describes what a child says during an interview with the professional. It does not evaluate the child’s wishes or provide opinions about the accuracy of those wishes.
*A “'''views of the child report'''” includes some evaluation. It often gives an opinion on the reliability of the child’s statements. For example, does the child understand the implication of their wishes, or have they been coached? A views of the child report may also include recommendations.


==What about “views of the child reports”?==
Costs range from $1,000 for a hear the child report to $3,500 for a views of the child report. The judge can order a free report be prepared by a family justice counsellor, but they can take up to six months.
A views of the child report, sometimes called a “hear the child report”, describe the child’s views about a particular issue or about how the child is experiencing his or her parents’ separation.  


These reports can be prepared by a mental health professional under section 211 of the ''Family Law Act''. Reports prepared by mental health professionals are usually evaluative, which means that the mental health professional may offer an opinion about what the child has said.
===What is a “needs of the child assessment” report?===
If arrangements about the care of a child are disputed, the judge may ask a family justice counsellor or another person, like a social worker, a psychologist or a counsellor, to prepare a “'''needs of the child assessment'''”. These are also called “section 211 reports” (they are written under [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec211_smooth section 211] of the ''Family Law Act'').  


Non-evaluative views of the child reports can be prepared under section 202 of the Act. Non-evaluative reports simply repeat what the child has told the person preparing the report, and do not offer an opinion. These reports are also prepared by mental health professionals but can also be prepared by Family Justice Counsellors or any one with special training, including a lawyer.
The assessor will write a report about the needs of the child, the views of the child if the child is old enough, and the ability of the parties to meet the child’s needs. These reports often describe the parenting arrangements the assessor believes are in the best interests of the child.  


==Are orders and agreements about custody and access, and parenting arrangements and contact, final?==
Because of high demand, reports prepared by family justice counsellors can take months to complete. Psychologists and other counsellors can write a private report faster, though the fees are in the thousands of dollars. Some insurance plans will pay some of the fees.
No order or agreement about these issues is ever absolutely final. Orders and agreements about custody and access, and parenting arrangements and contact, may be changed whenever there is a significant change in circumstances affecting the child, including because of a change in circumstances of another person, providing that the change affects the child’s best interests and justifies changing the order or setting aside the agreement.


==Do you need a lawyer?==
===Are orders and agreements about these matters final?===
You are not required to retain a lawyer, however it is strongly recommended that you obtain legal advice and representation where possible. Orders about custody or parenting arrangements can be made in the Supreme Court. Orders about parenting arrangements can also be made in Provincial Court. If you go to Provincial Court, most court registries will require you to take a free government-sponsored “Parenting After Separation” course before you can be heard by the court. Many people find the course to be very helpful, and you should consider taking the course whether the court requires you to take the course or not.
No order or agreement about these issues is ever absolutely final. Orders and agreements about custody and access, and parenting arrangements and contact, may be changed whenever there is a significant change in circumstances affecting the child, including because of a change in circumstances of another person, providing the change affects the child’s best interests and justifies changing the order or setting aside the agreement.


==Should you try to mediate or use collaborative settlement processes?==
===Do I need a lawyer?===
Mediation and collaborative settlement processes are excellent ways to help parents reach an agreement on custody and access, and parenting arrangements and contact.  
You are not required to retain a lawyer. It is highly advisable to obtain legal advice and representation where possible. If you go to Provincial Court, most court registries require you to take a free government-sponsored “Parenting After Separation” course before you can be heard by the court. Many people find the course to be very helpful in learning about the issues involved in a family dispute. For more on Provincial Court, see our information on [[Family Court (Script 110)|Family Court (no. 110)]].


Mediation can help avoid a bitter court dispute – including going to court in the first place. Apart from paid, private mediators, the provincial government has trained mediators, called Family Justice Counsellors, who don’t charge for their services and are available to help couples come to an agreement about parenting. Call Service BC at 604.660.2421 in the lower mainland, 250.387.6121 in Greater Victoria or 1.800.663.7867 elsewhere in BC. Remember that an agreement drafted by a Family Justice Counsellor will have long-term consequences and may be difficult to change, so be sure to get independent legal advice before signing it. Your lawyer can also refer you to a mediator. For more information on mediation, refer to script [[Mediation and Collaborative Settlement Processes (Script 111)|111]] on “Mediation and Collaborative Settlement Processes”.
===Are there options to avoid going to court?===
Yes, there are excellent options to help parents reach an agreement on custody and access, and parenting arrangements and contact.  


Collaborative settlement processes are a kind of negotiation where you and the other party, along with your lawyers, agree to work together to resolve the problems arising from your separation without going to court. Collaborative processes often involve child specialists who give advice to the parties and their lawyers about the child’s needs and how the child is experiencing their separation.
'''Mediation''' can help you avoid going to court. Mediation is a process where the people in a conflict meet with a neutral person (a '''mediator'''), who helps them find a solution they agree on. The provincial government offers couples the services of trained mediators, called family justice counsellors, free of charge. Call Service BC at 604-660-2421 in the Lower Mainland, 250-387-6121 in Victoria, or 1-800-663-7867 elsewhere in BC. You can also engage a private mediator.  


==What should you do if the other parent won’t follow the order or agreement?==
'''Collaborative practice''' is a kind of negotiation where you and the other party, along with your lawyers, agree to work together to resolve the problems arising from your separation without going to court. Collaborative practice often involves specialists who advise the parties about the child’s needs and how the child is experiencing their separation.
The ''Family Law Act'' has special provisions for the enforcement of orders and agreements for parenting time and contact. In special circumstances, the court can also require police to help enforce these orders and agreements, however this should be a last resort only.
 
For more on these options, see our information on [[Mediation and Collaborative Settlement Processes (Script 111)|mediation and collaborative practice (no. 111)]].
 
===What can I do if the other parent won’t follow a court order?===  
The ''[mediation and collaborative practice (no. 111) Family Law Act]'' has special provisions for the enforcement of orders and agreements for parenting time and contact. In special circumstances, the court can also require police to help enforce these orders and agreements, though this should be a last resort only.


If you’re afraid the other parent is about to take your children out of the country and not bring them back, see a lawyer immediately. There are special provisions in the ''Family Law Act'' that can help with this too.
If you’re afraid the other parent is about to take your children out of the country and not bring them back, see a lawyer immediately. There are special provisions in the ''Family Law Act'' that can help with this too.


==Where can you get help or more information?==
==Get help==
*Refer to the [http://www.justicebc.ca/en/fam/ Family Justice website] of the provincial Ministry of Attorney General.
 
*See the Children section of the wikibook ''JP Boyd on Family Law'', hosted by Courthouse Libraries BC
===With more information===
*The laws referred in this script are available at [http://www.bclaws.ca/ www.bclaws.ca] or [http://laws-lois.justice.gc.ca/eng/ http://laws-lois.justice.gc.ca/eng/].
The wikibook '''''JP Boyd on Family Law''''', hosted by Courthouse Libraries BC, has extensive coverage of custody and access, guardianship, parenting arrangements, and contact.
:Web: [https://wiki.clicklaw.bc.ca/index.php?title=Children_in_Family_Law_Matters wiki.clicklaw.bc.ca]
 




[Updated May 2017]
[Updated May 2017]


'''The above was last reviewed for legal accuracy by Zahra H. Jimale.'''
'''The above was last reviewed for legal accuracy by [http://jimalelawcorp.com/about-zahra/ Zahra H. Jimale], Jimale Law Corporation.'''
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