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Difference between revisions of "Guardianship, Parenting Arrangements, and Contact"
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Guardianship, Parenting Arrangements, and Contact (view source)
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{{REVIEWEDPLS | reviewer = [https://www.boydarbitration.ca/ JP Boyd, QC], Boyd Arbitration Chambers|date= | {{REVIEWEDPLS | reviewer = [https://www.boydarbitration.ca/ JP Boyd, QC], Boyd Arbitration Chambers|date= May 2021}} {{Dial-A-Law TOC|expanded = divorce}} | ||
When parents separate, they must work out the details of how their children will be cared for. This includes decisions about guardianship, parenting arrangements, and contact. Learn about these parenting after separation issues and the laws that apply in your situation. | When parents separate, they must work out the details of how their children will be cared for. This includes decisions about guardianship, parenting arrangements, and contact. Learn about these parenting after separation issues and the laws that apply in your situation. | ||
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After they separate, a child’s parents may be able to reach an agreement about parental responsibilities (or decision-making responsibility under the ''Divorce Act'') and parenting time. They may decide to put this agreement into writing. This is called a '''separation agreement''' or a '''parenting agreement'''. | After they separate, a child’s parents may be able to reach an agreement about parental responsibilities (or decision-making responsibility under the ''Divorce Act'') and parenting time. They may decide to put this agreement into writing. This is called a '''separation agreement''' or a '''parenting agreement'''. | ||
If they can’t agree, the parents can ask a court or an arbitrator to decide. The court (or arbitrator) will make a decision based on what’s best for the child. That is the only consideration courts and arbitrators can take into account. | If they can’t agree, the parents can try '''mediation'''. If they still can’t agree, or if mediation isn’t possible, they can ask a court or an arbitrator to decide. The court (or arbitrator) will make a decision based on what’s best for the child. That is the only consideration courts and arbitrators can take into account. | ||
The arrangements for parenting made in orders and agreements are called '''parenting arrangements''' in the ''Family Law Act''. Under the ''Divorce Act'' they are called a '''parenting plan'''. | The arrangements for parenting made in orders and agreements are called '''parenting arrangements''' in the ''Family Law Act''. Under the ''Divorce Act'' they are called a '''parenting plan'''. | ||
For more, see our coverage of [https://dialalaw.peopleslawschool.ca/category/families/resolving-family-disputes/ resolving family disputes]. | |||
==Common questions== | ==Common questions== | ||
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===Who can be a guardian of a child?=== | ===Who can be a guardian of a child?=== | ||
The [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec39_smooth ''Family Law Act''] says that a child’s parents are the guardians of the child while they live together and after they separate. But, if the parents of a child did not live together after the child was born, | The [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec39_smooth ''Family Law Act''] says that a child’s parents are the guardians of the child while they live together and after they separate. But, if the parents of a child did not live together after the child was born, the parent with whom the child lives is treated as the child’s guardian. | ||
A parent who has never lived with their child is not the child’s guardian unless one of the following applies: | A parent who has never lived with their child is not the child’s guardian unless one of the following applies: | ||
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===What’s involved in applying to become a guardian of a child?=== | ===What’s involved in applying to become a guardian of a child?=== | ||
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] says you have to give evidence for why this would be in the best interests of the child. This means: | 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] says you have to give evidence for why this would be in the best interests of the child. This means: | ||
* filling out a [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/courthouse-services/court-files-records/court-forms/family/pfa733.pdf?forcedownload=true guardianship affidavit] that provides information about any children that are or have been in your care (an affidavit is a legal document where you make statements about facts you say are true), | |||
* filling out a | * getting a criminal record check, | ||
* getting a criminal record check, | * getting a record check from the child protection authorities, and | ||
* getting a record check from the child protection authorities, and | * getting a record check from the BC government’s [https://www2.gov.bc.ca/gov/content/safety/crime-prevention/protection-order-registry protection order registry]. | ||
* | |||
===Do I need a lawyer to work out parenting arrangements?=== | ===Do I need a lawyer to work out parenting arrangements?=== | ||
You don’t need a lawyer. But you should get legal advice and representation where possible. See | You don’t need a lawyer. But you should get legal advice and representation where possible. See who can help section, below. | ||
{| class="wikitable" | {| class="wikitable" | ||
|align="left"|''' | |align="left"|'''Options to consider''' | ||
If you’re planning to represent yourself, consider getting legal advice about your case beforehand. Or you could explore hiring an '''unbundled lawyer''' to help coach you or help with part of your case. To find a lawyer who offers unbundled services, see [https://unbundlinglaw.peopleslawschool.ca/ unbundlinglaw.ca]. | If you’re planning to represent yourself, consider getting legal advice about your case beforehand. Or you could explore hiring an '''unbundled lawyer''' to help coach you or help with part of your case. To find a lawyer who offers unbundled services, see [https://unbundlinglaw.peopleslawschool.ca/ unbundlinglaw.ca]. | ||
|} | |} | ||
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Yes. The ''Divorce Act'' and the ''Family Law Act'' encourage parents to resolve their family law problems out of court. You can try to work out parenting arrangements through mediation or collaborative negotiation. | Yes. The ''Divorce Act'' and the ''Family Law Act'' encourage parents to resolve their family law problems out of court. You can try to work out parenting arrangements through mediation or collaborative negotiation. | ||
'''Mediation''' is a process where the parents meet with a neutral person called a '''mediator'''. The mediator helps them talk to each other and find a solution they agree on. The provincial government offers couples the services of trained mediators, called family justice counsellors, for free. Or you can hire a private mediator. | '''Mediation''' is a process where the parents meet with a neutral person called a '''mediator'''. The mediator helps them talk to each other and find a solution they agree on. The provincial government offers couples the services of trained mediators, called family justice counsellors, for free. (In fact, at some Provincial Court locations, meeting with a family justice counsellor is one of the first steps in the court process.) Or you can hire a private mediator. | ||
A '''collaborative negotiation''' approach may also be used to settle things without going to court. In collaborative negotiation you and the other parent each hire specially-trained lawyers. You and your lawyers sign an agreement saying that no one will go to court or threaten to go to court. If the collaborative process breaks down, you and the other party must hire new lawyers if you want to go to court. | A '''collaborative negotiation''' approach may also be used to settle things without going to court. In collaborative negotiation you and the other parent each hire specially-trained lawyers. You and your lawyers sign an agreement saying that no one will go to court or threaten to go to court. If the collaborative process breaks down, you and the other party must hire new lawyers if you want to go to court. | ||
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{| class="wikitable" | {| class="wikitable" | ||
|align="left"|''' | |align="left"|'''Some exceptions''' | ||
There are times when mediation, collaborative negotiation, and arbitration might be inappropriate. This might be true if there has been family violence, or if someone is making threats to damage property or leave with a child. | There are times when mediation, collaborative negotiation, and arbitration might be inappropriate. This might be true if there has been family violence, or if someone is making threats to damage property or leave with a child. | ||
|} | |} | ||
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===What can I do if the other parent won’t follow a court order?=== | ===What can I do if the other parent won’t follow a court order?=== | ||
The [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec230_smooth ''Family Law Act''] has rules about enforcing parenting and contact orders and agreements. | The [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec230_smooth ''Family Law Act''] has rules about enforcing parenting and contact orders (and agreements too). How an order is enforced depends on whether it was made in Provincial Court or Supreme Court. Either court can order police to help with enforcement in special circumstances. But this is usually a last resort. | ||
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 rules in the ''Family Law Act'' and the ''Divorce 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 rules in the ''Family Law Act'' and the ''Divorce Act'' that can help with this too. | ||
{| class="wikitable" | |||
|align="left"|'''Self-help guides''' | |||
Legal Aid BC’s Family Law in BC website has [https://family.legalaid.bc.ca/bc-legal-system/court-orders/enforce-order-or-agreement-made-bc free step-by-step guides about enforcing orders and agreements] in Provincial Court and Supreme Court. | |||
|} | |||
===What if a parent wants to move after separation?=== | ===What if a parent wants to move after separation?=== | ||
There are rules about what happens when someone wants to move away — with or without their children — after separation. Such a move might have a significant impact on the relationship of a child with another person who has parenting time, decision-making responsibility, or contact. The law calls this type of move a '''relocation'''. | There are rules about what happens when someone wants to move away — with or without their children — after separation. Such a move might have a significant impact on the relationship of a child with another person who has parenting time, decision-making responsibility, or contact. The law calls this type of move a '''relocation'''. | ||
Under the ''Family Law Act'', someone who wants to relocate has to give '''60 days’ written notice'''. | Under the ''Family Law Act'', where there is a written agreement or court order about parenting arrangements, someone who wants to relocate has to give '''60 days’ written notice'''. The notice must be given to anyone who is a guardian of the child or has contact with the child. Only guardians may object to the move. To do so, they must file a court application to stop the move '''within 30 days''' of receiving notice of the move. | ||
Under the ''Divorce Act'', someone who wants to relocate also has to give '''60 days’ written notice'''. This [https://www.justice.gc.ca/eng/fl-df/divorce/ | Under the ''Divorce Act'', someone who wants to relocate also has to give '''60 days’ written notice'''. This [https://www.justice.gc.ca/eng/fl-df/divorce/nrf-fad.html relocation notice] must be given to anyone who has parenting time, decision-making responsibility or contact with the child under a ''Divorce Act'' order. Only someone who has parenting time or decision-making responsibility may object to the move. To do so, they must object '''within 30 days''' of receiving notice of the move by [https://www.justice.gc.ca/eng/fl-df/divorce/orf-fod.html giving written notice] or filing a court application. | ||
Under both laws, when there has been family violence, you can ask the court for an exception to the rule that the relocating person give notice of the move. | Under both laws, when there has been family violence, you can ask the court for an exception to the rule that the relocating person give notice of the move. | ||
