Difference between revisions of "Children and Parenting after Separation"

The schedule of a child's time with someone who isn't a guardian is ''contact''.

<blockquote><tt>(8)In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.</tt></blockquote>

<blockquote><tt>(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.</tt></blockquote>

*Will the proposal disrupt the child's schooling, or take the child away from his or her friends and family?

<blockquote>"Custody is not awarded in any sense to punish the parent who is deprived of it. There is no contest between parents to see who most deserves the children nor who was the more responsible for the break-up of the family unit."</blockquote>

<blockquote>"Custody is a placement of the children with the person who, in the court's judgment, presents that prospect of care and upbringing which is in the best interests of the children."</blockquote>

The old ''Family Relations Act'' made certain assumptions about who would have custody and guardianship of the children after a couple had separated. In general, the person who had the children most of the time was said to have ''de facto'' custody and guardianship of the children, meaning having custody and guardianship as a matter of fact than because of a court order.

#a parent who do have never lived with the other parent but "regularly cares" for his or her child.

Custody is about the right to have the child with you and the right to make decisions about how the child is raised. Custody can be awarded to one person, called ''sole custody'', or it can be shared between two parents, usually called ''joint custody''.

It is very important to understand that a parent's access rights to a child are entirely separate from that parent's obligation to pay child support. Child support is not a fee paid or charged to see one's child. It is never appropriate to withhold access because a parent missed a child support payment, nor is it ever appropriate to stop paying child support because access has been withheld. The courts do not look kindly on parents who have engaged in this sort of conduct.

Parents have ''split custody'' of their children when one or more of the children live with each parent most of the time. This sort of arrangement is pretty rare because it means that siblings will be separated from each other for significant periods of time. Split custody will only be ordered when there is good evidence that it is in the best interests of the children to live apart from each other, which 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'' when the children spend an equal or almost equal amount of time in each of the parents' homes. This sort of arrangement is becoming increasingly common.

Guardians have ''parental responsibilities'' for the children in their care, which is the duty to make decisions about the children in the best interests of the children. The terms of how parental responsibilities will be handled can be vague or they can be very specific. Specific terms usually define the distribution of parental responsibilities using a set of clauses drafted by Mr. Justice Joyce (the "Joyce model"), by Mr. Justice Garner (the "Charlton model") or by Master Horn (the "Horn model") or some hybrid of the three. All three models describe the rights and obligations both parents have when they are all guardians.  

The schedule of a child's time between guardians is called ''parenting time'', and the allocation of parenting time between the child's guardians is about the child's living arrangements. During a guardian's parenting time, the guardian is responsible for the care of the child and may make decisions about day-to-day issues concerning the child.

It is very important to understand that a guardian's parenting time with a child is entirely separate from his or her obligation to pay child support. Child support is not a fee paid or charged to see a child. It is never appropriate to withhold access because a guardian missed a child support payment, nor is it ever appropriate to stop paying child support because parenting time has been withheld. The courts do not look kindly on guardians who have engaged in this sort of conduct.

Under the ''Family Law Act'', someone who is not a parent, has ''contact'' with a child. Someone with contact does not have any parental responsibilities for the child, including any responsibility for day-to-day decision-making concerning the child.

It is very important to understand that a person's contact with a child is entirely separate from his or her obligation to pay child support. Child support is not a fee paid or charged to see a child. It is never appropriate to withhold access because a child support payment was missed, nor is it ever appropriate to stop paying child support because contact has been withheld. The courts do not look kindly on people who have engaged in this sort of conduct.

====Birdnesting====

Birdnesting is not a term drawn from either the ''Family Law Act'' or the ''Divorce Act''.

*A guardian assumes complete responsibility for the children when they are with him or her.

Parents, guardians and the court sometimes need help in deciding what is in the best interests of the children and need to get someone else's input, which might be from a psychologist, counsellor or social worker, or from the children themselves. The two most common was of doing this are through ''needs of the child assessments'', which used to be called "section fifteen reports" or "custody and access reports", or though ''views of the child reports''.  

<blockquote>"The purpose of a Court ordered s. 15 Assessment and Report ... is to assist the Court in determining the issues before it, including the paramount of 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>

It is important to remember that the function of the assessor in court is to present his or her recommendations and the evidence that he or she 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 his or her particular expertise as an experienced psychologist, psychiatrist, or family justice counsellor; the assessment is not a final determination of the issue.

A views of the child report, sometimes called a "hear the child report," is exactly what it sounds like. It's a report which describes the child's preferences about his or her parenting arrangements and living circumstances. These reports might address a child's preferences about the home he or she would like to live in, whether the child wishes to move out of town with a parent, or the schedule of the child's time with each parent. It might address the child's experiences of the conflict between his or her parents or guardians, or perhaps the child's experience with a parent's new partner.

It is important to know that the court will not make a decision based only on what the views of the child report says. The child is not making the decision and will not be responsible for making the decision. It's important for the child to know this as well.

Expert views of the child reports usually wind up looking like condensed needs of the child assessment that focus on the child's reports to the assessor and include an opinion as to whether the child's reported preferences represent the child's true preferences, whether the child was coached to report the preferences reported, and perhaps whether the child is being alienated from one parent by the other parent.

#a full needs of the child assessment isn't necessary,

#the judge wants to hear from the child but does not want to interview the child him- or herself.

Views of the child reports prepared by lay persons like lawyers and family justice counsellors don't provide the same level of analysis or authority offered by expert views of the child reports. These people are not qualified to offer an opinion about the child's state of mind or the truthfulness of the child's statements. All they can really do is say what the child told them, which is why these reports are ''non-evaluative''. They don't evaluate, they just report.

#the parents understand that the report is not an expert report,

#a full needs of the child assessment isn't necessary,

#the judge wants to hear from the child but does not want to interview the child him- or herself.

These reports will not be appropriate where the child is not capable of expressing his or her preferences or where there are allegations of parental alienation.

People other than a child's biological parents can also have a legal interest in a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles and so forth — although there's no reason at all why someone else, like an unrelated long-term caregiver or neighbour, couldn't also have an interest in a child. Most often, however, it's grandparents who feel the need to seek a legal role in their grandchildren's lives. For that reason, this discussion is primarily directed to grandparents, although it applies equally to other people who are not the parent of a child.

#where one or both of the guardians of the children are dead,

#where one or both of the guardians have abandoned the children or the care of the children,

#where they are being denied time or involvement with the children.

#getting contact with the children,

#being appointed as a guardian of the children.

===Legislation===

Each law has different rules about how and when non-parents can apply in court, and it's important to understand which law might be applicable.

====The ''Family Law Act''====

#any previous civil or criminal court proceedings related to the best interests of the child.

Any person can apply for contact with a child under s. 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.

<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>

Factors that the courts have taken into consideration in awarding custody to a non-parent have included:

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 of their grandchildren. It is possible to succeed on a custody application, although the chances of success depend wholly on the circumstances of each case.

There is a big difference between seeking custody or guardianship and seeking access or contact. In custody cases, the courts are concerned with the fundamental living arrangements and the health and welfare of the children. In court proceedings for access or contact, the parent usually has custody, and the court is being asked to challenge the parent or guardian's right to control his or her child's upbringing. As a result, the court will place an even greater emphasis on the discretion and judgment of the parent or guardian.