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Difference between revisions of "Children and Parenting after Separation"
From Clicklaw Wikibooks
Children and Parenting after Separation (view source)
Revision as of 22:05, 24 June 2019
, 22:05, 24 June 2019→Children's caregivers and extended family
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*being appointed as a guardian of the children. | *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, ''[http://canlii.ca/t/572w 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." | 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, ''[http://canlii.ca/t/572w 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=== | ===Legislation=== | ||
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<blockquote>"Parental claims will not be lightly set aside except in clear cases where the welfare of a child cannot otherwise be achieved."</blockquote> | <blockquote>"Parental claims will not be lightly set aside except in clear cases where the welfare of a child cannot otherwise be achieved."</blockquote> | ||
The Supreme Court of Canada emphasized the children's best interests a bit more strongly in ''[http://canlii.ca/t/1lpdq Racine v. Woods]'', [1983] 2 SCR 173 a case from 1983: | The Supreme Court of Canada emphasized the children's best interests a bit more strongly in ''[http://canlii.ca/t/1lpdq Racine v. Woods]'', [1983] 2 SCR 173, a case from 1983: | ||
<blockquote>"The law no longer treats children as the property of those who gave them birth but focuses on what is in their best interests."</blockquote> | <blockquote>"The law no longer treats children as the property of those who gave them birth but focuses on what is in their best interests."</blockquote> | ||
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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: | 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 | *police records, | ||
* the records of social workers involved with the children | * the records of social workers involved with the children, | ||
* files from the Ministry for Children and Families, and | * files from the Ministry for Children and Families, and | ||
* a psychologist's report. | * a psychologist's report. | ||
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Factors that the courts have taken into consideration in awarding custody to a non-parent have included: | 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, | *ill-treatment, mistreatment, and neglect of the children, | ||
*chronic drug or alcohol use, a partying type of lifestyle, | *chronic drug or alcohol use, a partying type of lifestyle, | ||
*instability of the guardians' lifestyle and living situation, | *instability of the guardians' lifestyle and living situation, | ||
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*poor parenting skills on the part of the guardian. | *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 ''[http://canlii.ca/t/gg1k0 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 [[Guardianship, Parenting Arrangements and Contact#Parental responsibilities and parenting time|parental responsibilities]]. | 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 ''[http://canlii.ca/t/gg1k0 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 [[Guardianship, Parenting Arrangements and Contact#Parental responsibilities and parenting time|parental responsibilities]]. | ||
===Access and contact=== | ===Access and contact=== | ||
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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 [http://canlii.ca/t/gjgdl ''N.H. v. D.H.''], 2013 BCPC 413. | 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 [http://canlii.ca/t/gjgdl ''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. | 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. | 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. | ||
