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Difference between revisions of "Children and Parenting after Separation"
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Children and Parenting after Separation (view source)
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===Custody and guardianship after separation=== | ===Custody and guardianship after separation=== | ||
Under | 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: | ||
#people who are parents under an assisted reproduction agreement, and | #people who are parents under an assisted reproduction agreement, and | ||
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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. | 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 | 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 | 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. | ||
===Guardianship under the ''Family Law Act''=== | ===Guardianship under the ''Family Law Act''=== | ||
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Not all guardians will have the same parental responsibilities. | Not all guardians will have the same parental responsibilities. | ||
A list of parental responsibilities are set out in | A list of parental responsibilities are set out in section 41 of the ''Family Law Act'', as follows: | ||
<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote> | <blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote> | ||
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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. | 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 ''[http://canlii.ca/t/4xfd 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 | The Supreme Court discussed the purposes of custody and access reports in a 2001 case called ''[http://canlii.ca/t/4xfd 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''): | ||
<blockquote>"[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."</blockquote> | <blockquote>"[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."</blockquote> | ||
