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Family Law Act Basics

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→‎The law about children

To decide what is in a child’s best interest, parents and judges must consider all of the needs and circumstances of the child, as well as a number of factors that are listed in section 37 of the act. These factors include:

#*the child’s health and emotional well-being;,#*the views of the child, unless it wouldn’t be appropriate to consider them:,#*the history of the child’s care and the child’s need for stability:,#*the child’s relationships with other important people;,#*any court proceedings that are relevant to the child’s safety and well-being; and,#*the impact of any family violence.

====The best interests of children and family violence====

When family violence is an issue, parents and judges must consider the best-interests factors at section 37 of the ''[[Family Law Act]]'', as well as a list of additional ~~considerations~~ consideraions set out at section 38, to help assess the impact of the family violence on the child and on a person’s capacity to care for the child. These considerations include:

#*the severity of the family violence;,#*the frequency of the family violence;,#*whether the violence was directed toward the child; and,#*the "harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence."

The ''Family Law Act'' also says that an agreement or order is presumed ''not'' to be in the best interests of a child unless it protects the child’s safety and well-being to the greatest extent possible.

Under section 211 of the ''[[Family Law Act]]'', the court can order that a family justice counsellor, a social worker, or another person like a clinical counsellor or a psychologist, assess one or more of:

#*the needs of a child,#*the views of a child; and, ~~and~~#*the ability of a person to meet the child’s needs.

These assessments are ''evaluative'' because they are conducted by an expert who makes recommendations to the court.

When people have a child through assisted reproduction, a person who donates eggs or sperm is not presumed to be a legal parent. However, a woman who is a surrogate mother ''is'' presumed to be a parent, and her spouse may also be a legal parent. The ''Family Law Act'' lets people make agreements when they have a child through assisted reproduction. These agreements can say who is a parent and who isn’t. The people who can be a parent under an assisted reproduction agreement are:

#*up to two people who want to have the child,#*a donor of sperm,#*a donor of eggs,#*a surrogate mother; and, ~~and~~ #*the spouse of the surrogate mother.

As a result, a child can have more than two parents under the ''Family Law Act''. The courts have yet to figure out how child support will work in situations like this.

Under the ''[[Family Law Act]]'', the people who are responsible for caring for a child are ''guardians''. A child can have one guardian, two guardians, or more than two guardians. Most of the time, a child’s parents will be the child’s guardians, as long as the parents have lived with the child. A parent who never lived with a child isn’t a guardian unless:

#*the court makes an order that the parent is a guardian;,#*the parent and the child’s other guardians make an agreement that the parent is a guardian;,#*the parent ''regularly cares'' for the child; or,#*the parent is a parent because of an assisted reproduction agreement.

The court can make an order appointing someone who isn’t a parent as the guardian of a child under section 51. The same section also lets the court make an order removing a person, including a parent, as the guardian of a child. Both the Provincial Court and the Supreme Court can make orders about guardianship.

The different ways that guardians care for a child and the decisions guardians have to make are called ''parental responsibilities.'' Parental responsibilities are listed at section 41 of the ''[[Family Law Act]]'' and include:

#*making decisions about the day-to-day care of the child;,#*deciding where the child will live;,#*making decisions about the child’s schooling and extracurricular activities;,#*making decisions about the child’s healthcare; and, #*deciding how the child will be raised, including making decisions about things like religion, language, and culture.

When a child has more than one guardian, the guardians must usually make these decisions together. However, the guardians can agree or the court can order that only one guardian should have a particular parental responsibility. One guardian, for example, might have the exclusive responsibility for making decisions about education while another guardian might have the exclusive responsibility for making decisions about healthcare.

If a guardian is temporarily unable to exercise their parental responsibilities, perhaps because they're sick or leaving the country for an extended period of time, the guardian can authorize someone else to manage certain responsibilities. This person doesn’t become a guardian but can be given the power to:

#*make decisions about the day-to-day care of the child;,#*make decisions about the child’s schooling and extracurricular activities;,#*make decisions about the child’s healthcare; and,#*give or withhold permission on behalf of a child, like about going on a school field trip or having a medical treatment.

This is useful whenever a guardian needs someone else to care for a child, or if a child from outside British Columbia will be going to school here and an adult living in British Columbia needs to care for the child and manage the child's affairs.

Under the ''[[Family Law Act]]'', a guardian can appoint someone to take over and act as the child’s guardian if:

#*the guardian has a terminal illness;,#*the guardian is going to be permanently unable to care for the child because of a mental illness; or,#*the guardian dies.

The new person takes over as guardian when the first guardian dies or becomes unable to exercise their parental responsibilities.

The ''[[Family Law Act]]'' gives the court the power to enforce parenting time and contact when:

#*parenting time or contact has been "wrongfully" withheld from a person entitled to parenting time or contact; or,#*a person with parenting time or contact fails to use their parenting time or contact.

In certain situations, it isn’t wrongful to withhold a child from a person entitled to parenting time or contact. Under section 62, it isn’t wrongful to withhold a child if:

#*the guardian with the child believes there is a risk of family violence;,#*the guardian with the child believes that the other person is impaired by alcohol or drugs;,#*the child is sick, and the guardian with the child has a doctor’s note;,#*the other person has frequently failed to use their parenting time or contact in the past; or,#*the other person told the guardian ahead of time that they weren't going to use their parenting time or contact.

The court can make a number of orders to enforce parenting time and contact, including requiring:

#*make-up time with the child, when parenting time or contact was wrongfully withheld; ,#*a person or a child to attend counselling; ,#*the parties to try to resolve their dispute outside of court;,#*payment of a party’s expenses; or,#*payment of a penalty of up to $5,000 to a person or as a fine.

Applications about the wrongful withholding of parenting time or contact must be brought within a year of when the parenting time or contact was withheld. Remember that disagreements about the exercise or withholding of time with a child can also be addressed through a mediator or an arbitrator, and that arbitrators can exercise the power of a judge when making decisions.

When a guardian objects, how the guardians share the child's time becomes really important. When the guardians ''do not'' have substantially equal parenting time, the guardian with the greater parenting time who wants to move must show the court that

#*they want to move in good faith; and,#*they have proposed reasonable plans to preserve the child’s relationship with the child’s other guardians, with people who have contact with the child, and with others who have an important role in the child’s life,

and the objecting guardian must then show that the move is not in the best interests of the child or the move will be allowed.

When the guardians ''do'' have substantially equal parenting time, the guardian who wants to move must show the court that:

#*they want to move in good faith;,#*they have proposed reasonable plans to preserve the child’s relationship with the child’s other guardians, with people who have contact with the child, and with others who have an important role in the child’s life; and,#*the move is in the child’s best interests.

''Good faith'' means that the guardian who wants to move isn’t planning on moving just to take the child away from another guardian, but because they are moving, at least in part, because they believe the move will improve the child's or guardian's quality of life.

Alise Nelson

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Family Law Act Basics

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