When a couple separates, they must decide on the care of their children. There are two laws and a host of legal concepts that deal with the issues in play.
Understand the legal framework
When a couple separates, they must decide where the children will live, how parenting decisions will be made, and how often each person will see the children.
There are two laws that deal with these issues, the federal Divorce Act and BC’s Family Law Act. The Divorce Act applies to parents who were married to each other. The Family Law Act applies to all parents, whether they were in a married or unmarried spousal relationship, were in a dating relationship, or were not in any relationship.
Under both laws, if the couple cannot agree about where the children will live or how much time each will have with the children, the couple can ask a court to decide. Whenever a court considers issues like these, the court’s primary concern is the best interests of the children.
The Divorce Act talks about the care of children in terms of custody and access.
Custody means the right to have a child with you and the right to make decisions about how the child is cared for and raised.
Parents can share custody of a child after they separate; this is called “joint custody”. When only one parent has custody of a child, it is called “sole custody”.
Most of the time, parents have joint custody of their child. Joint custody does not mean the child’s time is divided equally between the parents (although that is a common way of distributing children’s time between parents), but it does mean the parents have to work together when making decisions about the child.
Sole custody might be awarded to a parent in situations where there has been family violence, the other parent has drug or alcohol problems, or the other parent has been absent from the child’s life.
Access is about the child’s schedule of time with their parents. It often refers to the visitation schedule of the parent with the least amount of time with the children.
Where there is a serious risk to the safety of the child, a parent’s access can be subject to the requirement that the access occur in the presence of another adult. This is called “supervised access”.
A parent who has access but doesn’t have custody is still entitled to have information about the health, education and well-being of the child.
The Family Law Act talks about people who are guardians. Guardians are usually, but not always, the parents of a child. Guardians generally, but not always, have parental responsibilities for a child, which means they can make decisions for and about a child.
Who can be a guardian
Under the Family Law Act, while a child’s parents are living together and after they separate, each parent is presumed to be the child’s guardian.
A parent who has never lived with their child is not the child’s guardian unless one of the following applies:
- the parent regularly cares for the child,
- the parent and all of the child’s guardians make an agreement providing that the parent is also a guardian, or
- they are a parent under a written agreement providing for the child’s birth through assisted reproduction.
Someone can also become a guardian through a guardian’s will or an appointment when a guardian dies or becomes incapacitated. Or someone can apply to court to become a guardian.
Applying to become a guardian
If you apply to court to become a guardian, the law in BC requires you to provide certain information about why the order would be in the best interests of the child. You must complete a special affidavit (a legal document where you make statements about facts you say are true), get a criminal records check, a records check from the child welfare authorities, and provide certain information about any children that are and have been in your care.
Guardians generally, but not always, have parental responsibilities for a child. This means they have the responsibility to decide how to raise the child, based on the child’s best interests. Parental responsibilities include deciding where the child lives and goes to school, how the child gets treated when sick, and giving or withholding permission on behalf of the child.
Parental responsibilities can be shared
Parental responsibilities can be shared between two or more guardians, which usually means they are all responsible for making decisions about the child and must make those decisions in consultation with one another. Parental responsibilities also can be allocated among guardians, so that a guardian has sole responsibility for certain kinds of decisions, like about health care or schooling, and can make those decisions without having to consult the other guardians.
Parenting time and contact
The time a guardian spends with a child is called parenting time. During a guardian’s parenting time, the guardian is responsible for the care of the child and making decisions about day-to-day matters involving the child.
Contact is the time that someone who is not a guardian has with a child. Parents who are not guardians may have contact, as might grandparents, aunts and uncles, other family members or any one else who has an important relationship with a child.
After they separate, a child’s guardians may be able to reach an agreement about parental responsibilities and parenting time. They may decide to make this agreement formal. This is called a separation agreement.
If they can’t agree, the guardians can ask a court to decide. The court will make a decision based on what’s best for the child. The court’s only concern is the best interests of the child.
The arrangements made in an agreement or court order for parental responsibilities and parenting time are known as “parenting arrangements”.
The Family Law Act requires that a child’s views be considered, unless it would be inappropriate to do so.
If a child is old enough and mature enough, the judge will consider the child’s wishes when determining arrangements for custody, parenting time and contact. The importance given to the child’s views will depend on the age and maturity of the child, the reason why the child wishes to live with a particular person, and how strongly the child feels about wanting to live with that person.
There is no particular age at which children have the right to decide who they will live with. In general, the older the child is, the more weight the court will give to the child’s wishes. Usually, the wishes of a child over age 12 are taken into consideration, and an older teenager’s wishes are likely to be decisive.
If issues about the care of a child who is at least six years old are disputed, a judge may ask a professional with special training to prepare a report on the child’s wishes. These professionals may be a family justice counsellor, parenting coordinator, social worker, psychologist, counsellor, or a lawyer with special training. Many parents also agree to have a report done privately without a court order.
There are two main types of reports:
- A “hear the child report” describes what a child says during an interview with the professional. It does not evaluate the child’s wishes or provide opinions about the accuracy of those wishes.
- A “views of the child report” includes some evaluation. It often gives an opinion on the reliability of the child’s statements. For example, does the child understand the implication of their wishes, or have they been coached? A views of the child report may also include recommendations.
Costs range from $1,000 for a hear the child report to $3,500 for a views of the child report. The judge can order a free report be prepared by a family justice counsellor, but they can take up to six months.
If arrangements about the care of a child are disputed, the judge may ask a family justice counsellor or another person, like a social worker, a psychologist or a counsellor, to prepare a “needs of the child assessment”. These are also called “section 211 reports” (they are written under section 211 of the Family Law Act).
The assessor will write a report about the needs of the child, the views of the child if the child is old enough, and the ability of the parties to meet the child’s needs. These reports often describe the parenting arrangements the assessor believes are in the best interests of the child.
Because of high demand, reports prepared by family justice counsellors can take months to complete. Psychologists and other counsellors can write a private report faster, though the fees are in the thousands of dollars. Some insurance plans will pay some of the fees.
No order or agreement about these issues is ever absolutely final. Orders and agreements about custody and access, and parenting arrangements and contact, may be changed whenever there is a significant change in circumstances affecting the child, including because of a change in circumstances of another person, providing the change affects the child’s best interests and justifies changing the order or setting aside the agreement.
You are not required to retain a lawyer. It is highly advisable to obtain legal advice and representation where possible. If you go to Provincial Court, most court registries require you to take a free government-sponsored “Parenting After Separation” course before you can be heard by the court. Many people find the course to be very helpful in learning about the issues involved in a family dispute. For more on Provincial Court, see our information on Family Court (no. 110).
Yes, there are excellent options to help parents reach an agreement on custody and access, and parenting arrangements and contact.
Mediation can help you avoid going to court. Mediation is a process where the people in a conflict meet with a neutral person (a mediator), who helps them find a solution they agree on. The provincial government offers couples the services of trained mediators, called family justice counsellors, free of charge. Call Service BC at 604-660-2421 in the Lower Mainland, 250-387-6121 in Victoria, or 1-800-663-7867 elsewhere in BC. You can also engage a private mediator.
Collaborative practice is a kind of negotiation where you and the other party, along with your lawyers, agree to work together to resolve the problems arising from your separation without going to court. Collaborative practice often involves specialists who advise the parties about the child’s needs and how the child is experiencing their separation.
For more on these options, see our information on mediation and collaborative practice (no. 111).
The Family Law Act has special provisions for the enforcement of orders and agreements for parenting time and contact. In special circumstances, the court can also require police to help enforce these orders and agreements, though this should be a last resort only.
If you’re afraid the other parent is about to take your children out of the country and not bring them back, see a lawyer immediately. There are special provisions in the Family Law Act that can help with this too.
This information applies to British Columbia, Canada
Reviewed in May 2017
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