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{{REVIEWEDPLS | reviewer = [http://jimalelawcorp.com/about-zahra/ Zahra H. Jimale], Jimale Law Corporation|date= May 2017}} {{Dial-A-Law TOC|expanded = divorce}}
{{REVIEWEDPLS | reviewer = [https://www.boydarbitration.ca/ JP Boyd, QC], Boyd Arbitration Chambers|date= March 2021}} {{Dial-A-Law TOC|expanded = divorce}}
When a couple separates, they must decide on the care of their children. There are two laws and a host of legal concepts that deal with the issues in play.
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.
 
{| class="wikitable"
|align="left"|'''Alert!'''
This information has been updated to reflect [https://dialalaw.peopleslawschool.ca/the-divorce-act-is-changing changes to the ''Divorce Act''] that took effect on March 1, 2021.
|}


==What you should know==
==What you should know==


===Two laws deal with the care of children===
===Two laws deal with the care of children===
When a couple separates, they must decide where the children will live, how parenting decisions will be made, and how often each person will see the children.
When parents separate, they have to make some basic decisions about their children. Where will they live? How will they make decisions about the children? How much time will they spend with each parent?


There are two laws that deal with these issues, [https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html the federal ''Divorce Act''] and [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html BC’s ''Family Law Act'']. The ''Divorce Act'' applies to parents who were married to each other. The ''Family Law Act'' applies to all parents, whether they were in a married or unmarried spousal relationship, were in a dating relationship, or were not in any relationship.
There are two laws that deal with these issues: the federal [http://canlii.ca/t/7vbw ''Divorce Act''] and BC’s [http://canlii.ca/t/8q3k ''Family Law Act'']. The ''Divorce Act'' only applies to parents who are (or used to be) '''married''' to each other. The Family Law Act applies to '''all''' parents. It applies whether the parents are:


Under both laws, if the couple cannot agree about where the children will live or how much time each will have with the children, the couple can ask a court to decide. Whenever a court considers issues like these, the court’s primary concern is the '''best interests of the children'''.
* married or unmarried spouses,
* dating, or
* not in a relationship.


===Custody and access===
Under both laws, if parents can’t agree about the care of their children, they can ask a court to decide. Under the ''Family Law Act'', parents can also ask an arbitrator to decide. When making decisions like these, courts and arbitrators ''only'' consider the '''best interests of the children'''.
[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec16subsec1_smooth The ''Divorce Act''] talks about the care of children in terms of custody and access.


'''Custody''' means the right to have a child with you and the right to make decisions about how the child is cared for and raised.
===The terms used to talk about parenting after separation===
As of March 1, 2021, the terms “custody” and “access” are no longer used in the ''Divorce Act''. Instead, the Act uses terms to talk about parenting arrangements that are very much like the BC ''Family Law Act''.


Parents can share custody of a child after they separate; this is called '''joint custody'''. When only one parent has custody of a child, it is called '''sole custody'''.
====Decision-making responsibility and parenting time====
Under the ''Divorce Act'', '''decision-making responsibility''' means how married spouses make choices about important aspects of the children's lives. This includes where they go to school and how they’re treated when they get sick. It also includes what sports and other important activities they'll be involved in and if they’ll be raised in a religion. Decision-making responsibility can be shared between spouses or given to just one spouse.  


Most of the time, parents have joint custody of their child. Joint custody does not mean the child’s time is divided equally between the parents (although that is a common way of distributing children’s time between parents), but it does mean the parents have to work together when making decisions about the child.
'''Parenting time''' is just like it sounds. It’s the time a spouse spends with a child. Usually this is set by a schedule agreed on by the spouses or set by the court. During their parenting time, each spouse can make daily decisions about a child, such as decisions about bedtime, homework, and meals.


Sole custody might be awarded to a parent in situations where there has been family violence, the other parent has drug or alcohol problems, or the other parent has been absent from the child’s life.
A spouse who has decision-making responsibility or parenting time also has the right to ask for and get information about a child’s health, education, and welfare.


'''Access''' is about the child’s schedule of time with their parents. It often refers to the visitation schedule of the parent with the least amount of time with the children.
====Guardians, parental responsibilities, and parenting time====
Meanwhile, the BC ''Family Law Act'' talks about '''guardians'''. Guardians are usually the parents of a child. (Below we explain some situations where others can be guardians.) While a child’s parents are living together and even when they separate, each parent is presumed to be the child’s guardian.  


Where there is a serious risk to the safety of the child, a parent’s access can be subject to the requirement that the access occur in the presence of another adult. This is called '''supervised access'''.
Guardians have '''parental responsibilities''' for a child. Parental responsibilities under the ''Family Law Act'' is like decision-making responsibility under the ''Divorce Act''. That is, parental responsibilities mean how guardians make choices about important aspects of the children’s lives. This includes where they go to school, how they’re treated when they get sick, and if they’ll be raised in a religion. It also includes making daily decisions affecting the children, like what they wear or what they eat. Parental responsibilities can be shared between guardians or they can be given to just one guardian.


A parent who has access but doesn’t have custody is still entitled to have information about the health, education and well-being of the child.
The time a guardian spends with a child is called '''parenting time'''. During a guardian’s parenting time, the guardian is responsible for the care of the child. They are also responsible for making decisions about day-to-day matters involving the child.


===Guardians and guardianship===  
====Contact====
[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec39_smooth The ''Family Law Act''] talks about people who are '''guardians'''. Guardians are usually, but not always, the parents of a child. Guardians generally, but not always, have '''parental responsibilities''' for a child, which means they can make decisions for and about a child.
Someone who isn’t a spouse or guardian can have time with a child. Under both the ''Divorce Act'' and the ''Family Law Act'', this is called '''contact'''. A grandparent or another family member might have contact with a child. So might another adult with an important role in the child’s life. A key difference is that a person with contact can’t make daily decisions about a child. A person with contact also isn’t entitled to ask for or get information about the child’s health, education, or welfare.


====Who can be a guardian====
===How decisions about parenting are made===  
[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec39_smooth Under the ''Family Law Act''], while a child’s parents are living together and after they separate, each parent is presumed to be the child’s guardian.
{{PLSStorybox
| image = [[File:jannik.png|link=]]
| text      = “Marcie and I broke up almost a year ago. We have two kids (9 and 13) together. At first, the kids lived with each of us half the time. Now, I only see the kids on the weekends. We’ve been working with a family justice counsellor. They’ve been helping us figure things out through mediation because the kids want to see me more often.” <br>– Jannik, Cranbrook, BC
}}


A parent who has never lived with their child is not the child’s guardian unless one of the following applies:
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'''.


* the parent regularly cares for the child,
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.  
* the parent and all of the child’s guardians make an agreement providing that the parent is also a guardian, or
* they are a parent under a written agreement providing for the child’s birth through assisted reproduction.


Someone can also become a guardian through a guardian’s will or an appointment when a guardian dies or becomes incapacitated. Or someone can apply to court to become a guardian.
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'''.


====Applying to become a guardian====
==Common questions==
If you apply to court to become a guardian, [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec51_smooth the law in BC] requires you to provide certain information about why the order would be in the best interests of the child. You must complete a special '''affidavit''' (a legal document where you make statements about facts you say are true), get a criminal records check, a records check from the child welfare authorities, and provide certain information about any children that are and have been in your care.


===Guardians generally have parental responsibilities===
===Can a child decide who to live with?===
Guardians generally, but not always, have '''parental responsibilities''' for a child. This means they have the responsibility to decide how to raise the child, based on the child’s best interests. Parental responsibilities include deciding where the child lives and goes to school, how the child gets treated when sick, and giving or withholding permission on behalf of the child.
A child's views must be considered when deciding on parenting arrangements, unless it would be inappropriate to do so. However, while children have a ''voice'' in these decisions, they don’t have a ''choice''. These decisions are made by parents or, if the parents can’t decide, by a court or an arbitrator.


====Parental responsibilities can be shared====
If a child is old enough and mature enough, the court or arbitrator will consider what the child wants when determining parenting arrangements and contact.  
Parental responsibilities can be shared between two or more guardians, which usually means they are all responsible for making decisions about the child and must make those decisions in consultation with one another. Parental responsibilities also can be allocated among guardians, so that a guardian has sole responsibility for certain kinds of decisions, like about health care or schooling, and can make those decisions without having to consult the other guardians.


====Parenting time and contact====
There’s no particular age at which children have a right to decide who they’ll live with. The views and preferences of all children are important. The wishes of children who are 12 and older will carry more weight. The wishes of an older teenager may be decisive.
The time a guardian spends with a child is called '''parenting time'''. During a guardian’s parenting time, the guardian is responsible for the care of the child and making decisions about day-to-day matters involving the child.


'''Contact''' is the time that someone who is not a guardian has with a child. Parents who are not guardians may have contact, as might grandparents, aunts and uncles, other family members or any one else who has an important relationship with a child.
===How does a court consider a child’s wishes?===
Parents may disagree about a child’s parenting arrangements. If that’s the case, a court or an arbitrator may ask a professional to prepare a report about the child’s wishes. The professional may be a family justice counsellor, parenting coordinator, social worker, psychologist, clinical counsellor, or a lawyer with special training. Many parents also agree to have a report done privately without a court order.


===How parental responsibilities and parenting time are decided===
There are two main types of reports about children's wishes:
After they separate, a child’s guardians may be able to reach an agreement about parental responsibilities and parenting time. They may decide to make this agreement formal. This is called a '''separation agreement'''.


If they can’t agree, the guardians can ask a court to decide. The court will make a decision based on what’s best for the child. The court’s only concern is the best interests of the child.
* '''A non-evaluative views of the child report'''. This describes what a child says during an interview with the professional.
* '''An evaluative views of the child report'''. This describes what a child says ''and'' gives an opinion about the child’s needs or views. For example, how closely do the views expressed by the child match the child’s actual views? Does the child understand the consequences of their wishes? Has the child been coached to say something in particular?


The arrangements made in an agreement or court order for parental responsibilities and parenting time are known as '''parenting arrangements'''.
The costs of these reports range from about $1,000 for non-evaluative views of the child reports to about $3,500 for an evaluative views of the child reports. A court can also ask that a family justice counsellor prepare an evaluative views of the child report for free. But these reports can take up to six months to finish.


==Common questions==
===What is a parenting assessment?===
Where parents disagree about a child’s care arrangements, a court or an arbitrator can ask for a '''parenting assessment''', sometimes called a '''section 211 report''', after the part of the ''Family Law Act'' that talks about them. These reports are prepared by family justice counsellors, social workers, psychologists, and clinical counsellors. They make recommendations about the parenting arrangements that are likely to be in the best interests of the child.


===Can a child decide whom to live with?===
The report writer will look at:
[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec37_smooth The ''Family Law Act'' requires that a child’s views be considered], unless it would be inappropriate to do so.


If a child is old enough and mature enough, the judge will consider the child’s wishes when determining arrangements for custody, parenting time and contact. The importance given to the child’s views will depend on the age and maturity of the child, the reason why the child wishes to live with a particular person, and how strongly the child feels about wanting to live with that person.
* the needs of the child,
* the views of the child, if the child is old enough to express them, and  
* the ability of the parents to meet the child’s needs.  


There is no particular age at which children have the right to decide who they will live with. In general, the older the child is, the more weight the court will give to the child’s wishes. Usually, the wishes of a child over age 12 are taken into consideration, and an older teenager’s wishes are likely to be decisive.
The cost of these assessments can range from $5,000 to $15,000. A judge can also ask that a family justice counsellor prepare a parenting assessment for free. Because of high demand, reports prepared by family justice counsellors can take many months to complete. Psychologists and other counsellors can write a private report faster but they are expensive.


===How are a child’s wishes considered?===
===Are orders and agreements about these matters final?===
If issues about the care of a child who is at least six years old are disputed, a judge may ask a professional with special training to prepare a report on the child’s wishes. These professionals may be a family justice counsellor, parenting coordinator, social worker, psychologist, counsellor, or a lawyer with special training. Many parents also agree to have a report done privately without a court order.
No order or agreement about these issues is ever absolutely final. Orders and agreements about custody and access, and parenting arrangements and contact, may be changed whenever there is a significant change in circumstances affecting the child, including because of a change in circumstances of another person, providing the change affects the child’s best interests and justifies changing the order or setting aside the agreement.


There are two main types of reports:
===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, neither is presumed to be the child’s guardian. (Normally, the court acts as if the parent with whom the child mostly lives is the child’s guardian.)


* A '''hear the child report''' describes what a child says during an interview with the professional. It does not evaluate the child’s wishes or provide opinions about the accuracy of those wishes.
A parent who has never lived with their child is not the child’s guardian unless one of the following applies:
* A '''views of the child report''' includes some evaluation. It often gives an opinion on the reliability of the child’s statements. For example, does the child understand the implication of their wishes, or have they been coached? A views of the child report may also include recommendations.


Costs range from $1,000 for a hear the child report to $3,500 for a views of the child report. The judge can order a free report be prepared by a family justice counsellor, but they can take up to six months.
* the parent regularly cares for the child,
* there’s an agreement or court order saying that the parent is a guardian, or
* they are a parent under a written agreement providing for the child’s birth through assisted reproduction.


===What is a “needs of the child assessment” report?===
Someone can become a guardian through a guardian’s will. Or they can be appointed as a guardian when a guardian dies or becomes incapacitated. Or they can apply to court to become a guardian.
If arrangements about the care of a child are disputed, the judge may ask a family justice counsellor or another person, like a social worker, a psychologist or a counsellor, to prepare a '''needs of the child assessment'''. These are also called “section 211 reports” (they are written [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec211_smooth under section 211 of the ''Family Law Act'']).


The assessor will write a report about the needs of the child, the views of the child if the child is old enough, and the ability of the parties to meet the child’s needs. These reports often describe the parenting arrangements the assessor believes are in the best interests of the 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:


Because of high demand, reports prepared by family justice counsellors can take months to complete. Psychologists and other counsellors can write a private report faster, though the fees are in the thousands of dollars. Some insurance plans will pay some of the fees.
* filling out a special affidavit (a legal document where you make statements about facts you say are true),  
* getting a criminal record check,  
* getting a record check from the child protection authorities, and
* providing certain information about any children that are, and have been, in your care.


===Are orders and agreements about these matters final?===
===Do I need a lawyer to work out parenting arrangements?===  
No order or agreement about these issues is ever absolutely final. Orders and agreements about custody and access, and parenting arrangements and contact, may be changed whenever there is a significant change in circumstances affecting the child, including because of a change in circumstances of another person, providing the change affects the child’s best interests and justifies changing the order or setting aside the agreement.
You don’t need a lawyer. But you should get legal advice and representation where possible. See the “Who can help” section below.


===Do I need a lawyer?===
{| class="wikitable"
You are not required to retain a lawyer. It is highly advisable to obtain legal advice and representation where possible. If you go to Provincial Court, most court registries require you to take a free government-sponsored '''Parenting After Separation course''' before you can be heard by the court. Many people find the course to be very helpful in learning about the issues involved in a family dispute. For more on Provincial Court, [[Family Court|see our information on Family Court]].
|align="left"|'''Tip'''
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].
|}


===Are there options to avoid going to court?===
===Are there options to avoid going to court?===
Yes, there are excellent options to help parents reach an agreement on custody and access, and parenting arrangements and contact.
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''' can help you avoid going to court. Mediation is a process where the people in a conflict meet with a neutral person (a '''mediator'''), who helps them find a solution they agree on. The provincial government offers couples the services of trained mediators, called family justice counsellors, free of charge. Call Service BC at 604-660-2421 in the Lower Mainland, 250-387-6121 in Victoria, or 1-800-663-7867 elsewhere in BC. You can also engage 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. Or you can hire a private mediator.  


'''Collaborative practice''' is a kind of negotiation where you and the other party, along with your lawyers, agree to work together to resolve the problems arising from your separation without going to court. Collaborative practice often involves specialists who advise the parties about the child’s needs and how the child is experiencing their separation.
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.


For more on these options, [[Mediation and Collaborative Practice|see our information on mediation and collaborative practice]].
If you’re not able to come to an agreement, you could also try '''arbitration'''. An arbitrator can’t make an agreement, but will make a decision, just like a judge.


===What can I do if the other parent won’t follow a court order?===
For more on these options, see our information on [[Mediation and Collaborative Practice|mediation, collaborative negotiation, and arbitration]].
[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec229_smooth The ''Family Law Act''] has special provisions for the enforcement of orders and agreements for parenting time and contact. In special circumstances, the court can also require police to help enforce these orders and agreements, though this should be a last resort only.


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 provisions in the ''Family Law Act'' that can help with this too.
{| class="wikitable"
|align="left"|'''Tip'''
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.
|}
 
===Are orders and agreements about children final?===
No order or agreement about children is ever absolutely final. When there’s a significant change in circumstances affecting a child’s best interests, a parenting order or agreement may be changed or set aside. That is, something new must have happened since the original order or agreement was made to justify the change.
 
===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. In special circumstances, the court can order police to help enforce these orders and agreements. 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.
 
===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'''.
 
Under the ''Family Law Act'', someone who wants to relocate has to give '''60 days’ written notice'''. This must be given to anyone who is a guardian of a child or has contact with a 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/orf-fod.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.


==Who can help==
==Who can help==


===With more information===
===With more information===
The wikibook '''''JP Boyd on Family Law''''', hosted by Courthouse Libraries BC, has extensive coverage of custody and access, guardianship, parenting arrangements, and contact.
The wikibook ''JP Boyd on Family Law'' has extensive coverage of parenting arrangements after separation.
* [[Children_in_Family_Law_Matters|View website]]
* [[Children_in_Family_Law_Matters|View website]]
Legal Aid BC’s '''Family Law website''' has information and self-help guides on parenting and guardianship.
* [https://family.legalaid.bc.ca/children/parenting-guardianship Visit website]
===Free and low-cost legal help===
Family justice counsellors in '''Family Justice Centres''' throughout BC can help with guardianship, parenting, and related issues. Their services are free.
* Call 604-660-2421 (in the Lower Mainland)
* Call 1-800-663-7867 (toll-free)
* [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors Visit website]
Other options for legal help include legal aid, pro bono services, legal clinics, and advocates. [[Free and Low-Cost Legal Help|See our information on free and low-cost legal help]].


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