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Difference between revisions of "Grandparents and Extended Family Members"
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Grandparents and Extended Family Members (view source)
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===The ''Divorce Act''=== | ===The ''Divorce Act''=== | ||
Under | Under section 16(1) of the ''Divorce Act'', the court can make an order for ''custody'' or ''access'' on the application of a spouse or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application. | ||
Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before a child's caregivers and extended family members can step in; there must be an existing proceeding between the spouses in which to bring the application. | Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before a child's caregivers and extended family members can step in; there must be an existing proceeding between the spouses in which to bring the application. | ||
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A family law agreement is a contract between two or more people that is enforceable by the courts, just like any other kind of contract. The sort of agreement a child's caregiver or extended family member would want to sign might: | A family law agreement is a contract between two or more people that is enforceable by the courts, just like any other kind of contract. The sort of agreement a child's caregiver or extended family member would want to sign might: | ||
* authorize the caregiver or extended family member to exercise certain parental responsibilities in relation to the child, under | * authorize the caregiver or extended family member to exercise certain parental responsibilities in relation to the child, under section 43(2) of the ''Family Law Act'', | ||
* provide the caregiver or extended family member with specific rights of contact with the child, under | * provide the caregiver or extended family member with specific rights of contact with the child, under section 58(1) of the act, or | ||
* require one or more parents or guardians to provide child support to the caregiver or extended family member, under | * require one or more parents or guardians to provide child support to the caregiver or extended family member, under section 147(1) of the ''Act'', if the child is living with the caregiver or extended family member. | ||
It's important to know that a child's guardians cannot make an agreement appointing anyone except a parent as a guardian. Only the court can make someone other than a parent a guardian, and that requires an application to court and a court order. You'll find details about this further on in this section. | It's important to know that a child's guardians cannot make an agreement appointing anyone except a parent as a guardian. Only the court can make someone other than a parent a guardian, and that requires an application to court and a court order. You'll find details about this further on in this section. | ||
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When a child's caregiver or extended family member must apply for orders about the child under the ''[[Divorce Act]]'', they will be asking for orders about ''custody'' and ''access''. These applications will usually be applications to change, or ''vary'', an order that has already been made between the child's parents. | When a child's caregiver or extended family member must apply for orders about the child under the ''[[Divorce Act]]'', they will be asking for orders about ''custody'' and ''access''. These applications will usually be applications to change, or ''vary'', an order that has already been made between the child's parents. | ||
To vary an order for custody or access, | To vary an order for custody or access, section 17(5) of the ''Divorce Act'' requires proof of a change in circumstances: | ||
<blockquote><tt>Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote> | <blockquote><tt>Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote> | ||
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=====Guardianship, parental responsibilities and parenting time===== | =====Guardianship, parental responsibilities and parenting time===== | ||
Under | Under section 40(1) of the ''Family Law Act'', only people who are the guardians of a child have ''parental responsibilities'' and ''parenting time'' with respect to that child. People who are not the guardians of a child may have ''contact'' with the child but do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches, and so on. | ||
Under | Under section 39, the people who are presumed to be the guardians of a child are: | ||
*the child's parents, as long as they lived together after the child was born, | *the child's parents, as long as they lived together after the child was born, | ||
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A child's caregiver or extended family member who isn't a parent under an assisted reproduction agreement is not presumed to be a guardian of the child. A caregiver or extended family member may become the guardian of a child by: | A child's caregiver or extended family member who isn't a parent under an assisted reproduction agreement is not presumed to be a guardian of the child. A caregiver or extended family member may become the guardian of a child by: | ||
*applying for an order appointing them as a guardian of a child under | *applying for an order appointing them as a guardian of a child under section 51, | ||
*being appointed as the standby guardian of a child under | *being appointed as the standby guardian of a child under section 55, or | ||
*being appointed as the guardian of a child upon the death of a guardian under | *being appointed as the guardian of a child upon the death of a guardian under section 53. | ||
Since being appointed as a standby guardian or a testamentary guardian can both take some time, a caregiver or extended family member who feels the need to step in sooner rather than later will apply for appointment as the guardian of a child under | Since being appointed as a standby guardian or a testamentary guardian can both take some time, a caregiver or extended family member who feels the need to step in sooner rather than later will apply for appointment as the guardian of a child under section 51. | ||
Applications for appointment as a guardian can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. The person who is applying to become the guardian of a child, the ''applicant'', must fill out a special affidavit required by the [http://canlii.ca/t/85pb Provincial Court Family Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules] that talks about: | Applications for appointment as a guardian can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. The person who is applying to become the guardian of a child, the ''applicant'', must fill out a special affidavit required by the [http://canlii.ca/t/85pb Provincial Court Family Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules] that talks about: | ||
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=====Authorizations to exercise parental responsibilities===== | =====Authorizations to exercise parental responsibilities===== | ||
Under | Under section 43(2) of the ''Family Law Act'', a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on their behalf, including a child's caregiver or a member of the child's extended family. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do. | ||
The parental responsibilities that someone can exercise under a written authorization are: | The parental responsibilities that someone can exercise under a written authorization are: | ||
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=====Contact with a child===== | =====Contact with a child===== | ||
Any person can apply for contact with a child under | Any person can apply for contact with a child under section 59 of the act. The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check or an MCFD records check done. | ||
===Child Support=== | ===Child Support=== | ||
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====The ''Divorce Act''==== | ====The ''Divorce Act''==== | ||
Under | Under section 15.1(1) of the ''Divorce Act'', only a married spouse may apply for a child support order under the act. As a result, a caregiver or extended family member who has had to apply to vary a ''Divorce Act'' order for custody must apply for child support under the ''Family Law Act'' if child support is needed. Both applications can be made in the same document and at the same time. | ||
====The ''Family Law Act''==== | ====The ''Family Law Act''==== | ||
The ''Family Law Act'' says, at | The ''Family Law Act'' says, at section 147(1), that each parent has a duty to provide support for their child, as long as the child in question is a ''child'' as defined by section 146 and hasn't become a spouse or withdrawn from the care of their parents under s 147(1). Under section 149, the court can make an order requiring a parent to pay child support to ''a designated person'' on the application of a person acting on behalf of a child: | ||
<blockquote><tt>(1) ...on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.</tt></blockquote> | <blockquote><tt>(1) ...on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.</tt></blockquote> | ||
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As long as the child lives mostly with a child's caregiver or extended family member, the caregiver or extended family member can ask for an order for child support against some or all of the child's parents and guardians. | As long as the child lives mostly with a child's caregiver or extended family member, the caregiver or extended family member can ask for an order for child support against some or all of the child's parents and guardians. | ||
According to | According to section 150(1) of the act, where an order for child support is made, the amount of the support order is to be determined under the [[Child Support Guidelines]]. As a result, all of the provisions of the Guidelines apply when a child's caregiver or extended family member is asking for child support, including: | ||
*the tables that are used to calculate the amount of child support payable, | *the tables that are used to calculate the amount of child support payable, | ||
