This information regarding parenting rights, responsibilities, and arrangements is general in nature and not intended to be a substitute for legal advice. If you’re concerned about guardianship of, or access to your child in relation to a separation or divorce, please contact MacLean Law at 1 877 602 9900.
Lorne MacLean has struggled for many years to champion a balanced approach to the resolution of family law issues, including support, property division, and child custody and access. It seems that the heart-wrenching issue of child custody will now be addressed from an improved, and in this writer’s opinion, more balanced perspective. In the 1993 Supreme Court of Canada decision of Young, Lorne MacLean Q.C. successfully argued the courts to define custody, guardianship, and access in a more child-focused way as an obligation of divorcing parents and not as a right. More recent psychological studies have rejected the primary caregiver model and have found that children need two caring and involved parents to broaden a child’s experiences and upbringing. Remember, children should not forfeit the love and guidance of two caring and concerned divorcing parents merely because a marriage or relationship has broken down.
The recent changes in family law that came into affect on March 18, 2013 reflect the more balanced approach. The following information is a helpful guide to the Family Law Act.
Distinctions between the federal Divorce Act and BC’s provincial Family Law Act related to Parenting Rights and Responsibilities
Child custody, child guardianship, and child access rights/arrangements in Canada can be arrived at by legal statute, by negotiated or mediated agreement, or by court order. There are two laws that address this aspect of family law in BC–Canada’s Divorce Act and BC’s Family Law Act (the current Family Law Act replaces the previous Family Relations Act in BC as of March 18, 2013). While the statutes do have some differences, the courts have interpreted them in a similar manner so that there are effectively few substantive differences. The federal Divorce Act does not mention “guardianship,” for example, but an order for custody under the Divorce Act gives the full bundle of parental rights and responsibilities unless some rights or responsibilities are reserved to another person by statute or court order.
For married couples in BC, it is possible to obtain child custody and/or child access orders under either the Family Law Act (provincial legislation) or the Divorce Act (federal legislation). A court order granting child custody or access under the Divorce Act may be obtained prior to, at the same time as, or after, a divorce.
Unmarried couples may only obtain child custody and/or access orders under the Family Law Act. Unmarried couples may obtain child custody and/or access orders at any time after separation.
Both the Provincial Family Court and the Supreme Court of British Columbia have jurisdiction over child custody, guardianship, and access matters under the BC Family Law Act. However, BC parents seeking a divorce at the same time as a child custody or access order are limited to proceedings in the BC Supreme Court.
The Distinction between Child Custody, Guardianship, and Access
“Custody” is sometimes used to refer to mere physical custody and day-to-day care of a child. At other times, it is used in a broader sense, to mean the full bundle of rights and responsibilities of a parent to a child (in effect, meaning something very close to guardianship). In the past, the courts often used the broad meaning and both the federal Divorce Act and BC’s provincial Family Relations Act have adopted a broad definition of custody which includes physical control over the child as well as the right to determine the child’s education, healthcare, religion and other matters concerning the child’s well-being.
“Guardianship” refers to the full bundle of parental rights and responsibilities. Guardianship is composed of two parts:
- guardianship of the estate of the child, in which the guardian has the full bundle of parental rights regarding the child’s property
- guardianship of the person of the child, in which the person has the full bundle of parental personal rights, including the right to physical possession of the child
“Access” can be regarded as a form of temporary possession of a child, with the powers granted to the access parent (or another person) being those necessary to ensure the well-being of the child. Access is not intended to be the mere right to visit a child. Access is intended to facilitate a meaningful, continuing, post-separation relationship between the child and access parent or other. The same principles apply to the term “contact” used in the Family Law Act. Access/contact has been stated to be a right that belongs to the child, not the person seeking access. However, it is probably best understood as a mutual right.
About BC’s Family Law Act
BC’s Family Law Act outlines current rights and responsibilities of parents in BC in the event of a separation or divorce. The overall intent of the BC Family Law Act is to encourage parental cooperation and alternative dispute resolution processes to resolve family matters, particularly in relation to determining and designing parenting arrangements.
Here are some key highlights of the BC Family Law Act:
1. It provides a comprehensive scheme to determine a child’s legal parents, including in those situations where reproductive technology has been used.
2. It makes the child’s best interests the only consideration in addressing parenting disputes, as opposed to a paramount consideration, and identifies children’s safety as the overarching priority in its “best interests of the child” test. It also includes additional “best interests” factors, including:
- the history of the child’s care
- an assessment of family violence
- civil or criminal proceedings relevant to the safety or well-being of the child.
As well, the Act provides for consideration of a child’s views, unless it would be inappropriate—in other words, unless there is a reason why they should not be. This encourages greater inclusion of children’s views in determining parenting arrangements.
3. It reforms the previous Family Relations Act in relation to child guardianship, including the following:
- The terms “guardianship,” “parenting responsibilities,” and “parenting time” are used in place of the terms “custody” and “access”
- It sets rules for determining whether or not each parent is a guardian
- It defines guardianship according to a list of parental responsibilities that can be allocated to one or both parents to allow for customized parenting arrangements
- It eliminates the concept of joint guardianship in BC.
4. It provides that parents retain responsibility for their child upon separation if they have lived together with the child after the child’s birth (note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time. If they have not, the parent with whom the child lives is the guardian). It also consolidates guardianship of children by including testamentary and standby guardianship.
5. It includes a range of tools and remedies to address non-compliance with orders and agreements related to parenting time with a child. Remedies range from moderate to extraordinary, depending on the facts of the situation and any history of non-compliance. It also provides different remedies for failure to allow parenting time/contact and failure to exercise parenting time/contact.
6. It includes a statutory child relocation regime which is aimed at increasing the certainty and predictability of the law related to relocation of a child. Highlights of this aspect of the BC Family Law Act include:
- A clear definition of “relocation,” which is any move that will have a “significant impact” on the child’s relationship with the other guardian or person with contact (usually the child’s other parent).
- A mandatory 60-day notice-of-move provision, to provide an opportunity for parents to try to resolve any disputes, in advance, regarding a proposed move and relocation of a child.
- A list of factors that must be considered when a move is proposed–e.g. the reasons for the proposed move and whether the proposed move is likely to enhance the general quality of life of both the child and the guardian planning the move, and factors that must not be considered–e.g. whether the guardian would be willing to move without the child in any event. It also includes presumptions to be applied where the proposed move is contested.
- The requirement that a guardian who wants to relocate (move) with a child must give 60 days’ notice to every other guardian or person who has contact with the child, unless the guardian has obtained a court order that says he or she does not have to give notice before moving.
- The requirement that a guardian who does not approve of the child’s move must file an objection in court within 30 days of receiving the notice. YOU have to have guardianship to file a notice of objection, so this area where a parent only has “access”—soon to be called “contact”—as opposed to guardianship, has been contentious. A guardian can object to a child’s relocation on the basis that the move is not in the child’s best interests. Different standards apply depending on parenting time-sharing arrangements in existence before the application.
We recommend you contact MacLean Family Law immediately if you are dealing with the complex issue of child relocation.
7. It adds provisions relating to children’s property that would:
- Enable a child’s guardian(s) to manage property below a certain monetary threshold without a court order
- Provide court oversight of larger children’s trusts, including the appointment of private trustees.
If There is No Court Order or Agreement Related to Your Child
• Under the BC Family Law Act, in the absence of a court order and subject to any agreement between the birth parents, guardianship of a child is held jointly by the mother and father so long as they live together. After separation, the birth parents remain joint guardians of the estate of the child, but the birth parent who usually has care and control of the child is the sole guardian of the person of the child. If the father and mother were never married and never lived together so as to each be considered guardians, then the mother is the sole guardian of the child.
Factors Considered in Canadian Child Custody and Access Awards
- In making a custody, guardianship, or access order, the Court must look to the best interests of the child
- In making a custody order, the court takes into consideration the condition, means, needs and other circumstances of the child. Relevant issues are: the health and emotional well-being of the child, including any needs for care and treatment; the love and affection between the child and other persons; the education and training of the child; the capacity (including financial) of each prospective caregiver to look after the child; and, if appropriate, the views of the child (typically more important as the child gets older).
- The Court will consider who looked after the child while the parents lived together, what each parent’s plan for the care of the child is following the separation, the degree of bonding between the child and the prospective caregiver, as well as the amount of time that the parent has available to spend with the child.
- A child’s race, culture, or aboriginal heritage and the custodial parent’s willingness to respect and foster the child’s cultural identity is a relevant consideration.
- In Canada, the conduct of one or both parents in not considered relevant to the determination of child custody unless the conduct is relevant to the ability of the person to parent a child. Personality, character, and stability will be taken into account. A person’s alcoholism, drug addiction, sexual misconduct, dishonesty, and/or lack of social responsibility may also be considered in determining the best interests of the child.
- The willingness of each parent to allow or facilitate access to the child by the other parent is also an important factor. The court must seek to make an order that will facilitate the child having the maximum contact with each parent, subject to the child’s best interests.
- The Court is typically slow to change the status quo where the children are happy and in a stable setting. However, if the long-term best interests of the child require a change, the court may so order, notwithstanding the immediate discomfort and emotional upset.
- In making an access or contact order, the Court will look at the same factors, but with the aim of making an order that facilitates a meaningful relationship between the access/contact parent and the child, in so far as it is in the best interests of the child.
- Access/contact has been denied in circumstances where: the Court perceives risk to the child; the person has had insufficient contact with the child prior to the application; where there is a problem between the child and the parent; or even where there is a problem between the parents.
- Where the Court has some concerns about granting access, a conditional order may be made rather than denying access all together. The conditions may be as simple as setting a time and place for access or as onerous as requiring a third party to supervise access.
Types of Child Custody Orders
There are many types of child custody orders that may be made. A court may order:
- Sole custody, with sole guardianship by one parent or removal of a guardian
- Sole custody, with both parents having guardianship
- Joint custody
- Split custody (sole custody during the time the child resides with either parent)
- Shared custody (equal time)
The court may also decline to make an order.
- Under the BC Family Law Act, the court will be reluctant to remove guardians and also has the power to appoint persons guardians who did not have guardianship under any presumptions
- Child access/contact may be ordered with or without attached conditions (for example, conditions such as supervised access or a specific schedule), and it is possible to get an access order when no order for custody has been made. It is also possible for third parties to obtain access orders.
About Joint Custody and Shared Custody
- In the past, courts have been reluctant to order parents to share joint custody of a child unless there was some evidence or indication that the parents would be able to cooperate and communicate with one another and make decisions and resolve differences relating to the child with a minimum of conflict. Where it was apparent that to expect the parents to make joint decisions would only lead to further conflict, the court was likely to give sole custody to one of the parents.
- In the early 1990s, joint child custody awards in Canada increased as the courts looked beyond bald statements that the parties could not cooperate and began to order joint custody even in cases where the parties did not always see eye to eye regarding the raising of their children. Judges have concluded that to require utopian cooperation between parents after separation is unrealistic, for if they saw eye to eye on everything they would still be married.
- In the late 1990s, Lorne MacLean and other lawyers challenged gender stereotypes and began to seek shared custody–an expanded version of joint custody, where the parties share equal decision making and equal time with their children. Recent Court of Appeal authority has sanctioned a week-on/week-off arrangement. We are now moving towards a fairer distribution of parenting rights after separation. Recent psychological studies show children benefit most by low conflict and frequent and involved contact with both parents. Other studies show poor outcomes are predicted by the absence of a healthy father/child relationship after marriage breakdown.
About Sole Custody with Joint Guardianship
- Where one parent is given sole custody, the court can order that the parents both remain guardians of the child. This generally means that the parties are expected to consult with one another and keep one another informed with respect to the child, and in particular with respect to important social, educational, and health-related events in the child’s life. The parent who does not have custody, parenting responsibilities, or time with the child is entitled to obtain information about the child directly from teachers, doctors, and other persons looking after the child. However, the custodial parent(s) or parent(s) with parenting responsibilities have the power to make decisions in the event of a disagreement between the parties.
Some Important Things to Keep in Mind Regarding Child Custody and Guardianship
- The federal Divorce Act still uses the term “child custody” and some judges prefer to use the Divorce Act and not the BC Family Law Act as their reference in deciding cases, resulting in situations where the principles of both acts conflict with each other.
- Since the previous BC Family Relations Act’s replacement by the current Family Law Act, old orders are subject to changes as a result of new rules and terminology. Call MacLean Law if you are concerned about how your old order or agreement is affected by the changes in BC’s family law.
- The Family Law Act provides that custody, guardianship, parenting responsibilities and parenting time–or access to/contact with a child–can be decided by agreement between parents. Remember, the courts are not forced to accept the terms of an agreement between parents and will look only to what is deemed to be in the “best interests” of your child.
- Do not sign a separation agreement without independent legal advice from a top child custody, guardianship, or family dispute resolution professional.
Understanding the BC Family Law Act and federal Divorce Act, as they relate to your legal rights and responsibilities regarding your child, is important. We recommend that you speak with one of our highly experienced family lawyers at MacLean Law, at 1 877 602 9900, to ensure you have all the information and assistance you need to facilitate your child’s optimum well-being during the course of your separation or divorce.