Of primary concern to separated parents are the arrangements to be made for care of their children.
If this cannot be decided by agreement, a Judge of the Court can determine where children will live, how much time children will spend with each parent including both regular and holiday schedules, and how parents will make decisions about significant matters regarding the children such as education, religious instructions, and medical issues.
When parents have been married, custody applications are often made pursuant to the Federal Divorce Act in conjunction with a claim for divorce. Pursuant to section 16 of the Divorce Act, the court may make an order granting custody and access to any one or more persons, for a definite or indefinite period or until the happening of a specified event, and may impose such other terms, conditions, or restrictions as it thinks fit and just. In making an order, the court is required to take in consideration only the best interests of the child as determined by reference to the condition, means, needs and other circumstances of the child. Past conduct of a person is not to be considered as a factor unless it is relevant to the ability of that person to act as a parent to the child.
There is also provincial legislation which provides for the determination of parenting issues. Currently in British Columba that legislation is the Family Relations Act (the “FRA”). The FRA applies to both married and unmarried parents. Section 35 of the FRA enables the court to order that one or more personas exercise custody over a child or have access to a child. “Persons” includes parents, grandparents, other relatives of the child, and persons who are not relatives of the child. Similarly to the Divorce Act, the FRA provides that the court can include terms and conditions that it considers necessary and reasonable in the best interests of the child, and the court must give paramount consideration when making an order to the best interests of the child. In assessing those interests, the court is required to consider specified factors including any special care need, the views of the child (if appropriate), ties that exist between the child and other persons, and the capacity of the persons seeking an order to exercise these rights and duties adequately.
The FRA also provides for the court to make a guardianship order. Guardianship orders often set out the process by which parents consult with each other on significant decisions regarding a child, whether one parent has the right to make such decisions in the absence of agreement, and providing for parents to access third party records regarding the child including school and medical records.
There is no presumption in either the federal or provincial Acts in favour of granting joint or sole custody.
In the absence of a court order providing otherwise, under the FRA, where parents are separated the guardian of the child is the parent who usually has care and control of the child.
Effective March 18, 2013, the FRA is replaced with a new provincial Act, the Family Law Act (the “FLA”).
Among the many significant changes to family law in BC which will be brought about by the coming into force of the FLA are those dealing with care of and time with children.
Although the test remains “the best interests of the child”, the FLA no longer refers to “custody” and “access”. Instead, the more neutral terms of “parenting time” and “parenting responsibilities” will be used to describe time with and responsibility for making decisions concerning a child. Under the FLA, while a child’s parents are living together and after separation, each parent is the child’s guardian, and only a guardian may have parenting time and parenting responsibilities. On the application of a guardian, the court may make an order allocating parenting responsibilities and parenting time. It is possible for a parent to lose guardianship status by agreement or court order.
The FLA provides a longer list of factors which must be considered in determining care arrangements, including the history of the child’s care, the child’s need for stability given his or her age and stage of development, any family violence that impacts on the child’s safety or the capacity of a parent, and the appropriateness of an arrangement which requires the child’s guardians to cooperate on issue affecting the child.
The intent of the new legislation is to modernize the “best interests” test, clarify the law surrounding time with and care of children, and promote a more collaborative approach to parenting after separation, where appropriate.
If you have any questions regarding parenting issues after separation, please contact the MacLean Family Law Group and request a consultation with one of our lawyers.
