Surrey Child Custody and Child Guardianship
Our Surrey Child Custody and Child Guardianship lawyers know the new Family Law Act and Divorce Act both allow for Surrey Child Custody and Guardianship orders to be made.
How does the court decide which Act to use?
The answer is complicated and you need an experienced Surrey Child Custody and Child Guardianship lawyer to deal with this issue. Meet with us in our South Surrey Office at 303-15240 56th Avenue by calling 604-576-5400 now.
New BC Supreme Court Decision on Interplay between Custody and Guardianship
When spouses with children separate in BC, the first word in the dispute is usually “custody”, whether the spouse desires sole custody of the children or wishes for there to be joint custody. The second word, perhaps seen as less important, is “guardianship”. Even in situations where one parent had sole custody of the children by order of the BC Court or agreement, there frequently still were orders and agreements for joint guardianship. The concepts coexisted, with custody being day-to-day decision making and where the children primarily resided, and guardianship being responsible for the overall ‘big picture’ responsibility for the child and large-scale decision making.
New Guardianship and Parenting Rules
With the Family Law Act in force in BC for over one year now, ‘custody’ is no longer a word or concept in the Provincial Legislation. Instead, only ‘guardianship’ remains, although in an expanded and powerful and most importantly a flexible form. Further, we know longer use the term joint guardianship.
As we have discussed before on the BC Family Law Blog, pursuant to section 39 of the Act, parents of a child are generally guardians. While a child’s parents live together and after they separate, each parent of the child is the child’s guardian. Even if a parent has never resided with his or child, he/she may be a guardian if he/she “regularly cares for the child”. Section 41 defines the “Parental Responsibilities” which a guardian may exercise, ranging from making decisions respecting the day-to-day care of the child to making decisions respecting the child’s cultural upbringing and heritage.
Allocating Parenting Responsibilities
The BC Court has the ability to allocate the Parental Responsibilities between the child’s parents, including an order that the parents share the Parental Responsibilities equally.
Unlike the BC Family Law Act, the Federal Divorce Act speaks of “custody” of “children of the marriage” in a divorce proceeding. Is there a conflict between our BC law and the Federal law, both of which could be applicable to BC family law spouses who are married, upon separation?
New BC Case Explains Things
The recent case of BDM v AEM 2014 BCSC 453 ultimately reached the conclusion that there isnot a conflict and that each law is applicable; they can operate in harmony.
Mr. Justice Sewell concluded his carefully-reasoned analysis of this issue:
[115] I can see nothing in the FLA that would frustrate the purpose of s. 16 of the Divorce Act. The underlying purpose of the relevant provisions of the Divorce Act and FLA are identical. Both statutes require the Court to consider the best interests of the child in determining parenting responsibility.
[116] Section 16(8) of the Divorce Act states as follows:
(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.
Section 37(1) of the FLA is as follows:
37 (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.
[117] As identified in Hansen, the mandatory requirement that the court consider the factors set out in s.37 of the FLA could be seen as hindering the unfettered discretion contained in s. 16 of the Divorce Act. However all the authorities seem to be in agreement that there is little prospect of any real conflict in applying the two statutes. In addition, the specific circumstances set out in s. 37(2) of the FLA are not exhaustive of the circumstances that the court must consider in deciding what is in the best interests of a child. Section 37(2) expressly directs the court to consider all of the child’s circumstances.
[118] In addition, the language of s. 16(1) of the Divorce Act is permissive. It provides that the court may make an order respecting custody or access. In my view nothing in s. 16 precludes this court from considering issues of child care rights and responsibilities within the analytical framework set out in the FLA, and making an order pursuant to the provincial legislation. The objectives of both statutes appear to be identical.
Parents who separate will often agree on very little but both will readily agree their children are the most precious treasure from their relationship. Cooperation by both parents predicts a better outcome for children after separation. If you need help with a post separation child custody and guardianship issue call one of our top rated lawyers across BC at 1 877 602 9900.
