Our child access child contact lawyers handle hundreds of child parenting time, child parenting responsibilities and child access and child contact cases. Our child access child contact lawyers act for primary residential parents, shared parenting spouses and parents seeking child access and child contact. BC guardians get parenting time but BC non-guardian parents get child access- also know as child contact.
What Is BC Child Access and BC Child Contact?
Our child access child contact lawyers advise that a parent who is not a guardian does not have parenting responsibilities or parenting time but can have child contact under the Family Law Act or child access under the Divorce Act. We are multiple winners of Vancouver’s Best Family Law Firm as determined by Top Choice Awards so you can meet with us with full confidence that we will accurately assess your case and prepare a powerful argument to maximize your chances of success.
Child access disputes can involve situations where conditions such as not smoking in the presence of the child, abstaining from using alcohol, staying within a defined leaving geographic location, taking parenting courses, or even supervision during access may be sought by the guardian as a term of the child contact in cases that our child access child contact lawyers are handling.
Highly respected Lorne N. MacLean, QC, our founder, notes that in the recent BC Supreme Court decision of Fawcett v Read the issue of respect and deference for the wishes of the child’s guardian are now a factor to be considered together with the bests interests test set out in section 37 of the Family Law Act.
Guardian’s Wishes Require Respect
In this family matter, Ms. Read appeals an interim order of a Master which awarded Mr. Fawcett, a former boyfriend, contact with Ms. Read’s nine-year-old daughter, A.[16] I do of course agree that only the best interests of the child, A., may be considered in determining whether and how much contact should be afforded. But that analysis should be a nuanced and contextual consideration.
[17] Section 59 reads as follows:
(1) On application, a court may make an order respecting contact with a child, including describing the terms and form of contact:
(2) A court may grant contact to any person who is not a guardian, including, without limiting the meaning of “person” in any other provision of this Act or a regulation made under it, to a parent or grandparent.
(3) The court may make an order to require the parties to transfer the child under the supervision of, or require contact with the child to be supervised by, another person named in the order if the court is satisfied that supervision is in the best interests of the child.
(4) An access order referred to in section 54.2 (2.1) or (3) of the Child,Family and Community Service Act is deemed for the purposes of this Act, to be an order made under subsection (1) of this section for contact with a child.
[18] The claimant bears the onus of establishing that contact with him is in the best interests of the child: Kalafchi v. Yao, 2015 BCSC 1152 at para. 26 [Kalafchi SC], aff’d 2015 BCCA 524.
[19] Section 59 does not set out specific criteria on which an order is to be made. Therefore, an order under s. 59 is subject to the general “best interests” factors set out in Part 4 of the FLA, and the analysis which must be undertaken should look at all the circumstances relevant to the child.
[20] The list of factors set out in s. 37(2) of the FLA provides a basis for analyzing the best interests of A.: Hansen v. Mantei-Hansen, 2013 BCSC 876 at paras. 95, 98. However, this list is not exhaustive: Pozzobon v. Pozzobon, 2013 BCSC 1226 at para. 30.
[21] The wording of s. 37(2) makes it clear that the list of enumerated factors is not exhaustive:
37(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following . . .
[emphasis added]
[22] I find that in addition to the factors enumerated at s. 37(2), Part 4 of the FLA – Care of and Time with Children, which contains ss. 37 to 80, also contains other provisions that are relevant for consideration in the circumstances of this case.
[23] Specifically, s. 41, which addresses parental responsibilities, sets out a number of responsibilities with respect to a child, which must be exercised in the best interests of the child, as per s. 43.
[24] Section 40(1) dictates that “only a guardian may have parental responsibilities” and that “each child’s guardian may exercise all parental responsibilities with respect to the child” unless, as per s. 40(2), there is an agreement or an order that allocates parental responsibilities differently. In this case, the respondent is the only guardian of A., and there are no agreements or orders in place that have altered her parental responsibilities. As such, the respondent may, as per s. 40(2) “exercise all parental responsibilities with respect to the child”. This of course includes the parental responsibilities set out in s. 41, which follows:
41. For the purposes of this Part, parental responsibilities with respect to a child are as follows:
(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
(b) making decisions respecting where the child will reside;
(c) making decisions respecting with whom the child will live and associate;
(d) making decisions respecting the child’s education and participation in extracurricular activities, including the nature, extent and location;
(e) making decisions respecting the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child’s aboriginal identity;
(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;
(h) giving, refusing or withdrawing consent for the child, if consent is required;
(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
(j) requesting and receiving from third parties health, education or other information respecting the child;
(k) subject to any applicable provincial legislation,
(i) starting, defending, compromising or settling any proceeding relating to the child, and
(ii) identifying, advancing and protecting the child’s legal and financial interests;
(l) exercising any other responsibilities reasonably necessary to nurture the child’s development.
[25] Because these parental responsibilities must be exercised in the best interests of the child (as noted above), this provision can be read and considered harmoniously with s. 37. I agree with the respondent’s counsel that s. 41 codifies a degree of deference to the guardian’s views on issues concerning the child, so long as they are guided by the child’s best interests. Thus, I find that s. 37 does not mean that the views of the guardian, as they relate to the enumerated parental responsibilities, are not relevant in considering what may constitute the best interests of the child.
[26] Indeed, s. 40, when read together with s. 41, gives the guardian the right to do many things, including the following, all of which are relevant in this case: make decisions respecting with whom the child may live and associate with: (s. 41(c)); defend any proceeding relating to the child: (s. 41(k)(i)); and exercise any other responsibilities reasonably necessary to nurture the child’s development: (s. 41(l)).
[27] As permitted by the legislation, the court can of course alter or re-allocate these responsibilities; however, no such order is being sought in this case.
[28] Deference to the custodial parent’s views has also been recognized in case law: see Chapman v. Chapman, [1993] B.C.J. No. 316 (S.C.). While Chapman does precede the passage of the FLA,it has been cited for several of the principles it enunciates, including giving deference to the custodial parent: N.F. v. H.L.S., [1998] B.C.J. No. 1739, aff’d 1999 BCCA 398. In T.F. v. K.R.C., 2010 BCSC 1808, the court in making its finding, said the following at para. 47, after considering Chapman and N.F.:
I am mindful of the principle that the court should generally accord considerable deference to the wishes of the custodial parent who is charged with the child’s long term care.
[29] I will note that the approach has changed somewhat since the introduction of the FLA, for example Bruce J. in Kalafchi SC, at para. 24, does suggest that deference to the custodial parent’s decision about contact with a non-guardian may conflict with the emphasis in the FLA on the best interests of the child, but she does state that the other principles established by Chapman remain valid and should be applied to applications under s. 59 of the Act. In the final analysis, she ultimately still considers deference to custodial parents to be valid because at para. 25, she finds that the custodial parent is entitled to deference regarding contact pending trial. Therefore, I do not find that this statement means that giving deference to the custodial parent’s decision is no longer appropriate.
[30] Deference to the custodial parent’s views is a relevant consideration, subject to any other evidence with respect to the best interests of the child. The custodial parent’s views cannot trump the best interests test but may form one component of it.
The New Test For Child Contact Under The Family Law Act
[31] Consequently, I find, that in making a decision for contact under s. 59, I must consider the best interests of A. in light of all applicable considerations. Further, given the codified deference owed to guardians under the Act when it comes to parental responsibilities, and given the case law, I find that in this analysis I may consider the reasonable views of the respondent, so long as they are reflective of the best interests of A.
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