The interim custody and access vancouver child guardianship clauses of the new BC Family Law Act states that in the first instance and subject to Court Order:
Parents are generally guardians
39 (1) While a child’s parents are living together and after the child’s parents separate, each parent of the child is the child’s guardian.
The family lawyers at MacLean Family law Group are here to help guide you through the critical new changes to BC law that will govern how care and control and decision making of children will be determined under our new Family Law Act. Contact us now for a specific assessment of your case.
From the time you separate from your partner until trial, you and your former partner should try to agree on suitable arrangements for your children. Most studies show the greatest predictor of poor outcomes for the development of children is a continuing high parental conflict post separation. Often, the emotional resentments and issues between two adults influence their opinions and decisions regarding who should care for the child until the parties are thoroughly heard at trial. If you do not agree on proper interim custody arrangements for your child, you must apply to court through an interim custody application- soon to be renamed a child parenting time and parental responsibilities application. Call us at 604 602 9000 or email us at to get help with this new area and the new rules that apply to these common interim applications.
The new Family Law Act which will be in force shortly starts with this premise:
Upon separation, the starting point is that each guardian may exercise all of the parental responsibilities. Parental responsibilities may be allocated between guardians by agreement or court order, but if there is no allocation, each guardian retains responsibility for all aspects of the care of their children.
This approach is intended to encourage greater co-operation by giving guardians a clear idea of what their responsibilities are and allowing parenting arrangements to be tailored to each family’s circumstances. However, where co-operation is not possible or appropriate, the option of asking a judge to make an order allocating parental responsibilities in the child’s best interests is available.
This new law marks a major change from the default position provided by current B.C. law: when parents separate, the parent who usually has care and control of the child has guardianship, unless agreed or ordered otherwise. Similar provisions exist for custody.
Here are 5 points to consider before you go to Court to obtain custody – soon to be called Parenting Time, Parenting Responsibilities and Child Contact of and to your child:
1) The Courts are not here to Right all Wrongs – the courts will not exclusively focus how your spouse treated you or how ‘bad’ or ‘mean’ he/she was towards you. seeking sole custody of your child should not and will not be solution in ‘teaching him/her a lesson’. If your ex-partner has not been a bad mother/father towards your child, consider the benefits to your child of allowing them to have just as much time with the child as you.
2) Your Child is Not Property to be owned – At the end of a long relationship, people often feel like they failed at one of the biggest and most valuable investment they poured their heart and soul to. Naturally, they may unduly focus on their children to ensure that another relationship does not fail. What they may fail to consider, however, is that your child to be able to grow up into a healthy adult cannot be put in an inappropriate position of ‘saving you’, taking care of you, helping you with your loneliness or being put in a position of loyalty testing. Try not to focus on your own hurt but rather try to ensure the child can have the benefit of two loving and caring parents after separation. If at all possible let your child and his/her right to have two valuable, vital and loving parents in his/her life. If your child is important to you, you must put him or her and his/her interests before your own. Regardless of how you feel about your partner, you child feels differently. The highest expression of love is sacrifice, acceptance and forgiveness. Forgive your ex-partner for what he/she did to you for the sake of your child and let him/her love your child as much as you do.
3) The new law focuses on an early attempt to encourage parties to co-parent and the concept of Full Sole Custody and Guardianship is far less common today – forget the notion that you and your ex-partner are in competition and one must be the sole caregiver of the child. You should strive to maximize the time your child spends with both you and your ex-partner. This can mean equal parenting time together but this situation is not always appropriate. e will be happy to discuss your options and look at how the past roles and changes for the future impact on a successful parenting plan moving forward.
4) Do not Use harsh and demeaning adjectives when Describing your Partners in your Affidavits but you can objectively raise facts that may cause the court concern over each sides ability to parent. The court must draw its own conclusion regarding the way your ex-partner was. Do not show your resentment and personal feelings towards your partner by describing him/or her as ‘mean’, ‘abusive’, ‘oppressive’ etc. You will only hurt your case. The court may well draw a negative inference from the way you describe your partner and will likely draw a conclusion that the custody case is not about the child, it is about you and your feelings towards your partner.
5) Use the Court to promote the best interests of your child – some legal academics opine the only time you should go to court for sole custody of your child is when your partner places your child in danger. We feel that is not an optimal approach when deciding the best possible parenting plan for your child and that a thorough review of your case to enable the best possible parenting plan makes far more sense. It is certainly appropriate to proceed to court if your partner physically harms or abuses your child, neglects your child, does not care properly for your child or places your child in danger. If a parent is cannot or is not able to spend quality time with the child and is placing the child in the care of third parties consider a plan that more effectively ensures the child is cared for by the best possible person. Show proof of your legitimate concerns. It is not enough to speculate. It is not enough to guess. It is not enough to use your partner’s new life or partner as an excuse for getting sole custody. It is not enough to show that you have a better job than your ex-partner. It is not enough to show that you are healthier than your ex-partner. Remember, your child needs his/her dad just as much he/she needs his/her mom, and the love he/she must receive does not come from the job mom or dad hold or how much money they have.
Call us regarding your custody matters at 604 602 9000.
