42
edits
Changes
Mary Mouat and I have reviewed the chapter, with the exception of Alienation and Changing Agreements/Orders. I have integrated our changes up to "Reports and Assessment". I hope to finish integrating the changes we have so far this week.
===The ''Divorce Act'' and the ''Family Law Act''===
For married spouses, the law about the care of children after separation is governed by the federal ''Divorce Act'' as well as the provincial ''Family Law Act''. For unmarried spouses and other unmarried couples, the only law that applies is the ''Family Law Act''. Although married spouses can ask for orders under both the ''Divorce Act'' and the ''Family Law Act'', it's usually best to pick one Act or the other. This is to determine issues related to the care of children because the two laws Acts approach the care of children with different attitudes and use different language.
If parties disagree over which act applies, be prepared to understand what ''paramountcy'' is. The doctrine of paramountcy says that provincial laws must give way to federal laws if there is a conflict between the two, even if both laws are otherwise valid and even if either could apply. The ''Divorce Act'' is federal, so it will likely apply first to custody or access disputes around children of married spouses. Again, this is only if there is disagreement about which act the married spouses agreed to use. While both the ''Divorce Act'' and the ''Family Law Act'' speak about the best interests of children, the ''Divorce Act'' contains the concept of ''maximum contact'' (between the child and both parents), that is not included in the ''Family Law Act''. As all ''Divorce Act'' matters proceed in the Supreme Court of British Columbia, and the ''Family Law Act'' being relatively new (it “came into force” on March 18, 2013), there There are a number of cases that consider which of these two acts Acts should apply and how they work together. A good summary is found in [http://canlii.ca/t/gf1gz Jirh v. Jirh]'', 2014 BCSC 1973and another good summary is found in B.D.M. v. A.E.M., 2014 BCSC 453 http://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc453/2014bcsc453.html?resultIndex=1.
While both the ''Divorce Act'' and the ''Family Law Act'' speak about the best interests of children, the ''Divorce Act'' contains the concept of ''maximum contact'' (between the child and both parents), that is not included in the ''Family Law Act''. Maximum Contact is not a concept that is included in the ''Family Law Act''; in fact, the ''Family Law Act'' says that there is no particular parenting plan or arrangement that “is presumed to be in the best interests of a child.”
====Custody and access====
====Guardianship and parental responsibilities====
The ''Family Law Act'' talks about people who are ''guardians''. A guardian is Guardians are usually, but not always, the parents of a person child, including people who is responsible for making decisions about how the child is cared for and raisedare parents because of an assisted reproduction agreement. A guardian has Guardians generally (but not always) have ''parental responsibilities''for a child, which means that they can make decisions for and about a child. The decisions that guardians make about a guardian child must make these decisions be in the that child's best interests of the child.
Someone who isn't a parent can usually only be appointed as the guardian of a child by a court order.
===The best interests of the children===
Whenever the court considers issues involving children, its first and foremost concern is the best interests of the children, not whatever the particular wishes of a parent might be, no matter how well-intentioned those wishes , might be. It's not about you; it's about your kids. As a result, in any application concerning children you must show that the outcome you're looking for is the outcome that is in your children's best interests.
Section 16 of the ''[[Divorce Act]]'' is about custody and access and says this:
*Will the proposal disrupt the child's schooling, or take the child away from his or her friends and family?
You should bear in mind these quotes from Mr. Justice Spencer in ''[http://canlii.ca/t/1dll3 Tyabji v. Sandana]'', 1994 CanLII 410 (BC SC) a 1994 decision of the British Columbia Supreme Court:
<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>
===Custody and guardianship after separation===
#people who are parents under an assisted reproduction agreement, and
A parent who has sole custody of a child is the parent in whose household the child lives for the majority of the time.
When parents have joint custody, both parents have the right to the day-to-day care of the child, although the child may spend more time at the home of one parent than the other, ; sometimes a lot more time. Parents can have joint custody even when one of them only sees the child on the weekends and or even when the parents live in different provinces. There is no connection between having joint custody and the amount of time each parent has with the child.
Access is the schedule of the child's time between his or her parents.
===Guardianship under the ''Family Law Act''===
The ''[[Family Law Act]]'' doesn't talk about custody. Instead it talks about the responsibilities and duties of people who are ''guardians''. Most of the timeGenerally, parents are guardians. However, not all parents are guardians and a guardian is person other than a child's parentcan be that child's guardian. However, other people A parent who has never lived with a child can become guardians only be a guardian by being appointed agreement with the other parent; by "regularly caring for" the court child; or , by being named court order. Courts have interpreted "regularly cares for" as guardian meaning more than occasional visits. There is a case from the BC Court of Appeal, A.A.A.M. v. BC, 2015 BCCA 220, which found that when the Ministry of children and Family Development controled how often a parent could see his child, it was unfair to say that parent had not “regularly cared for” the child. The Court of Appeal in this case found that a parent’s intention to “regularly care for” a child who was in the care of the Ministry was enough to make that parent a guardian's will.http://www.canlii.org/en/bc/bcca/doc/2015/2015bcca220/2015bcca220.html?resultIndex=1
====Parental responsibilities====
====Parallel parenting or silo parenting====
Parallel parenting is not a term you will find in the ''Family Law Act'' or in the ''Divorce Act''.
====Birdnesting or ''nesting'' ====
''Birdnesting'' refers to a parenting schedule where the children live full-time in the family home and their parents move in and out. This type of arrangement may be common when parents are separating and don't yet have separate residences.
When parents birdnest, the children remain in the same place and it's the parents who do the moving, normally while maintaining separate homes outside the family home.
The theory underlying this concept is that it is disruptive for children to switch homes every week and that it can be too costly to make sure there's a full set of clothing, toys, books and whatnot in both houses. Birdnesting lets the kids stay in a single home, usually the family home that they've grown up in. Of course, the cost saved by avoiding duplication of the children's clothes and books is offset by the need to maintain two or possibly three homes: the family home, and a home for each of the parents.
Birdnesting is a term that has been created by lawyers and judges, like the term "primary residence." Birdnesting is not a term you will find in the ''Family Law Act'' or the ''Divorce Act''.
===Contact under the ''Family Law Act''===
Under the ''Family Law Act'', someone who is not a parent or guardian can have ''contact'' with a child. When children are spending time with friends and extended family, they are having “contact” with these people. Agreements and court orders can formalize that contact.
Someone with contact does not have any [[parental responsibilities]] for the child, such as the responsibility for day-to-day decision-making concerning the child.
Contact can be as limited phone calls or skype visits or as broad as overnights, weekends or holidays. A person’s contact with a child may also be supervised or monitored. Like all decisions about children, contact will only be ordered if it is in a child’s [[best interest]] to have that contact.
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.
==Reports and assessments==