Children in Family Law Matters

From Clicklaw Wikibooks

When a couple involved in a family law dispute have children, they must make decisions about four important issues: where the children will live, how parenting decisions will be made, how often each person will see the children, and how the children will be provided for. This chapter reviews the first three of these issues in detail. The fourth issue is covered in the Child Support chapter.

This introductory section provides an overview of the law on the care of children after separationIn family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of.", and looks at traditional and developing concepts in this area of the law. It also discusses the interests that grandparents and other non-parents or guardians might have. Other sections of this chapter look more closely at parenting after separation, guardianship and contact, custody and access, making changes to orders and agreements involving children, and the problem of estrangement and alienation.

Other legal issues relating to children, such as family violence, naming, and adoptionIn family law, the act or process of taking another person's natural child as one's own. The child becomes the adopting parent's legal child as if the child were the adopting parent's natural child, while the natural parent loses all rights and obligations with respect to the child. See "natural parent.", are discussed in the chapter Other Family Law Issues.

Introduction

There are two pieces of legislationAn act; a statute; a written law made by a government. See "regulations." that deal with issues about the care of children when parents separate, the federal Divorce Act and the provincial Family Law Act. Both laws allow parents and other people to apply for orders about where the children will live and how much time each person will have with the children if they can't make an agreement about these issues themselves. Whenever the court is asked to make a decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." about issues like these, the court's primary concern is the children and the sort of arrangements that will be in their best interests. Most of the sections in this chapter talk about how the court makes these decisions and the laws that apply to different parents in different situations.

The Parenting after Separation section talks about some very important issues that don't involve the courts and the legislation but are equally important: how to protect children from the conflict between their parents, how to develop parenting plans, and how to locate resources that are available to separating and separated parents. When parents separate, there is a lot more at stake than just where the children are going to be living tomorrow. Parents have an obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." to think in the long-term, and take a perspective that sees years down the road. How is their conflict going to affect their children? How can both parents maintain a meaningful role in their children's lives? How will the children adapt to the separation? When the children are older and look back on their childhood, what will they think of the separation? And, perhaps most importantly, how can the children best be helped to grow and mature into adults with families of their own?

There's a lot more to dealing with the care of children after separation than what you'll find in the Divorce Act and the Family Law Act. The romantic relationship between the parents may be over, but they'll always be parents no matter the nature of their relationship with each other. Parents owe a positive duty to their children to overcome their differences and always put their children first, no matter how hard it is to cope with the emotional and legal issues that arise from their separation.

The Divorce Act and the Family Law Act

For married spouses, the law about children after separation is governed by the federal Divorce Act as well as the provincial Family Law Act. For unmarried spouses and other unmarried couples, the only law that applies is the Family Law Act. Although married spouses can ask for orders under both the Divorce Act and the Family Law Act, it's best to pick one or the other. This is because the two laws approach the care of children with different attitudes and use different language.

If parties disagree over which actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations." applies, be prepared to understand what paramountcy is. The doctrine of paramountcy says that provincial laws must give way to federal laws if there is a conflict between the two, even if both laws are otherwise valid and even if either could apply. The Divorce Act is federal, so it will likely apply first to custodyIn family law, an antiquated term used by the ''Divorce Act'' to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. See "access." or accessUnder the ''Divorce Act'', the schedule of a parent's time with his or her children under an order or agreement. Access usually refers to the schedule of the parent with the least time with the child. See "custody." disputes around children of married spouses. Again, this is only if there is disagreement about which act the married spouses agreed to use.

While both the Divorce Act and the Family Law Act speak about the best interests of children, the Divorce Act contains the concept of maximum contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities." (between the child and both parents), that is not included in the Family Law Act.

As all Divorce Act matters proceed in the Supreme Court of British Columbia, and the Family Law Act being relatively new (it “came into force” on March 18, 2013), there are a number of cases that consider which of these two acts should apply and how they work together. A good summary is found in Jirh v. Jirh, 2014 BCSC 1973.


Custody and access

The Divorce Act talks about the care of children in terms of custody and access. Custody is about the right to have the child with you and the right to make decisions about how the child is cared for and raised. Access is about the childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."'s schedule of time with his or her parents. A parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." who has access but doesn't have custody is still entitled to have information about the health, education and well-being of the child.

Guardianship and parental responsibilitiesA term under the ''Family Law Act'' which describes the various responsibilities exercised by guardians in the care, upbringing and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian."

The Family Law Act talks about people who are guardians. A guardian is a person who is responsible for making decisions about how the child is cared for and raised. A guardian has parental responsibilities, which means that a guardian must make these decisions in the best interests of the child.

Guardians are usually, but not always, the parents of a child, including people who are parents because of an assisted reproduction agreement. A parent who isn't a guardian can become a guardian by an agreement signed by all of the child's guardians. However, if the parent and the guardians can't agree, the parent will have to apply to court to be appointed as a guardianA person charged with the legal care of someone under a legal disability. A term under the ''Family Law Act'' referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time.".

Someone who isn't a parent can usually only be appointed as the guardian of a child by a court orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration.".

Parenting time and contact

Under the Family Law Act, a guardian's time with a child is called parenting timeA term under the ''Family Law Act'' which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian.". During a guardian's parenting time, the guardian is responsible for the care of the child and is entitled to make basic day-to-day decisions for the child.

The schedule of a child's time with someone who isn't a guardian is called contact.

The best interests of the children

Whenever the court considers issues involving children, its first and foremost concern is the best interests of the children, not whatever the particular wishes of a parent might be, no matter how well-intentioned those wishes might be. It's not about you; it's about your kids. As a result, in any application concerning children you must show that the outcome you're looking for is the outcome that is in your children's best interests.

Section 16 of the Divorce Act is about custody and access and says this:

(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 of the Family Law Act is titled "Best interests of child" and goes into more detail than the Divorce Act about what children's "best interests" means:

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangementsA term under the ''Family Law Act'' which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time." or contact with a child, the parties and the court must consider the best interests of the child only.
[emphasis added]
(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:
(a) the child's health and emotional well-being;
(b) the child's views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child's life;
(d) the history of the child's care;
(e) the child's need for stability, given the child's age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." relevant to the child's safety, security or well-being.
(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

In making decisions about custody and access under the Divorce Act, or parental responsibilities, parenting time and contact under the Family Law Act, the court will take into account a whole range of factors, including some of the following:

  • Who looked after the child most of the time during the marriageA legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits and obligations. See also "conjugal rights," "consortium" and "marriage, validity of."?
  • Does the child have a stronger bond with one parent than the other?
  • How much will each parent work to encourage the child to spend time with the other parent?
  • What plans do the parents have to look after and care for the child?
  • How well can the parents cooperate and communicate with each other?
  • How will the order proposed by the applicantA party who brings an application to the court for a specific remedy or relief. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application." affect the child?
  • Will the proposed order be in the child's long-term best interests?
  • Will the proposed order disrupt the child's present life? Is there an established status quo that the child has already settled into?
  • Will the proposal disrupt the child's schooling, or take the child away from his or her friends and family?

You should bear in mind these quotes from Mr. Justice Spencer in Tyabji v. Sandana, 1994 CanLII 410 (BC SC) a 1994 decision of the Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.":

"Custody is not awarded in any sense to punish the parent who is deprived of it. There is no contest between parents to see who most deserves the children nor who was the more responsible for the break-up of the family unit."
"Custody is a placement of the children with the person who, in the court's judgmentA judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," "findings of fact," and "final judgment.", presents that prospect of care and upbringing which is in the best interests of the children."

Custody and guardianship after separation

The old Family Relations Act made certain assumptions about who would have custody and guardianship of the children after a couple had separated. In general, the person who had the children most of the time was said to have "de facto custody" and "de facto guardianship" of the children, meaning having custody and guardianship as a matter of fact rather than because of a court order.

Under s. 39 of the new Family Law Act, while parents are living together and after they separate, both of them are presumed to the guardians of their children. These parents are guardians in fact and in law and do not need a court order to give them guardianship of their children. Other people who are presumed to be guardians are:

  1. people who are parents under an assisted reproduction agreement, and
  2. a parent who has never lived with the other parent but "regularly cares" for his or her child.

The Divorce Act does not make any presumptions about who has custody of the children after separation.

Legal concepts about the care of children

Custody and access under the Divorce Act

Custody is about the right to have the child with you and the right to make decisions about how the child is raised. Custody can be awarded to one person, called sole custody, or it can be shared between two parents, usually called joint custodyA term used by the ''Divorce Act'' when both spouses have custody of a child, giving both the right to make parenting decisions concerning the child's health, welfare and upbringing but not necessarily requiring or implying that the spouses have equal or near-equal amounts of time with the child. See “access" and "custody.".

A parent who has sole custody of a child is the parent in whose household the child lives for the majority of the time.

When parents have joint custody, both parents have the right to the day-to-day care of the child, although the child may spend more time at the home of one parent than the other, sometimes a lot more time. Parents can have joint custody even when one of them only sees the child on the weekends and even when the parents live in different provinces. There is no connection between having joint custody and the amount of time each parent has with the child.

Access is the schedule of the child's time between his or her parents.

It is very important to understand that a parent's access rights to a child are entirely separate from that parent's obligation to pay child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses.. Child support is not a fee paid or charged to see one's child. It is never appropriate to withhold access because a parent missed a child support payment, nor is it ever appropriate to stop paying child support because access has been withheld. The courts do not look kindly on parents who have engaged in this sort of conduct.

Custody under the Child Support GuidelinesA regulation to the federal ''Divorce Act'', adopted by every province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved.

The Child Support Guidelines (often simply called the GuidelinesShort for the Child Support Guidelines, a regulation to the federal ''Divorce Act'', adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay based on the person's income and the number of children involved.) is a regulation to the Divorce Act that has been adopted by almost every province, including British Columbia. The Guidelines talks about how child support should be calculated, but along the way it also talks about how the children's time is shared between their parents, since that can have an impact on the calculation of child support.

Parents have split custodyA term used by the Child Support Guidelines to describe circumstances when one or more children live most of the time with each parent or guardian, resulting in an amount of support that is different than the table amount. See "child support," "Child Support Guidelines" and "table amount." of their children, under s. 8 of the Guidelines, when one or more of the children live with each parent most of the time. This sort of arrangement is pretty rare because it means that siblings will be separated from each other for significant periods of time. Parents can agree to split custody, or this arrangement can be ordered where the court finds good evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." that having the children live apart is in their best interests. This might be the case when the children don't get along with each other and are constantly fighting, or where it can be proved that one or more but not all of the children will be better off with the other parent.

Parents have shared custodyA term used by the Child Support Guidelines to describe circumstances when a child's time is shared equally or almost-equally between his or her parents or guardians, often resulting in an amount of support that is different than the table amount. See "child support," "Child Support Guidelines" and "table amount.", under s. 9 of the Guidelines, when the children spend an equal or almost equal amount of time in each of the parents' homes. The court recognizes that an arrangement that children live with a parent at least 40% of the time is a shared custody arrangement. This sort of arrangement is becoming increasingly common.

Guardianship under the Family Law Act

The Family Law Act doesn't talk about custody. Instead it talks about the responsibilities and duties of people who are guardians. Most of the time, a guardian is a child's parent. However, other people can become guardians by being appointed by the court or by being named as guardian in a guardian's will.

Parental responsibilities

Guardians have parental responsibilities for the children in their care, which is the duty to make decisions about the children in the best interests of the children. The terms of how parental responsibilities will be handled can be vague or they can be very specific. Specific terms usually define the distribution of parental responsibilities using a set of clauses.

Parenting time

The schedule of a child's time between guardians is called parenting time, and the allocation of parenting time between the child's guardians is about the child's living arrangements. During a guardian's parenting time, the guardian is responsible for the care of the child and may make decisions about day-to-day issues concerning the child.

It is very important to understand that a guardian's parenting time with a child is entirely separate from his or her obligation to pay child support. Child support is not a fee paid or charged to see a child. It is never appropriate to withhold parenting time because a guardian missed a child support payment, nor is it ever appropriate to stop paying child support because parenting time has been withheld. The courts do not look kindly on guardians who have engaged in this sort of conduct.

Contact under the Family Law Act

Under the Family Law Act, someone who is not a parent or guardian, has contact with a child. Someone with contact does not have any parental responsibilities for the child, such as the responsibility for day-to-day decision-making concerning the child.

It is very important to understand that a person's contact with a child is entirely separate from his or her obligation to pay child support.

Other legal concepts

Birdnesting or nesting

Birdnesting refers to a parenting schedule where the children live full-time in the family homeIn family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property." and their parents move in and out. In a usual situation where the children's time is shared fairly equally between their parents, the children go to live with one parent for a period of time, then go to live with the other parent for a similar period of time. When parents birdnest, the children remain in the same place and it's the parents who do the moving, normally while maintaining separate homes outside the family home.

The theory underlying this concept is that it is disruptive for children to switch homes every week and that it can be too costly to make sure there's a full set of clothing, toys, books and whatnot in both houses. Birdnesting lets the kids stay in a single home, usually the family home that they've grown up in. Of course, the cost saved by avoiding duplication of the children's clothes and books is offset by the need to maintain three homes: the family home, and a home for each of the parents.

Birdnesting is a term that has been created by lawyers and judges, like the term "primary residenceThe geographic place where a person permanently lives. This is different from a person's "domicile" in that a person's residence is more fixed and less changeable in nature. A person's residence can also have an impact on a court's authority to hear and decide a legal action. See "domicile" and "jurisdiction."." Birdnesting is not a term you will find in the Family Law Act or the Divorce Act.

Parallel parenting or silo parenting

Parallel parenting is a way of distributing parental responsibilities between guardians that is best suited for situations where each of the guardians may be a good parent and the children would do well with either of them, but the parents are unable to cooperate on parenting decisions. A helpful 2004 decision of the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction.", J.R. v. S.H.C., 2004 BCPC 0421 discusses the concept of parallel parenting at length:

  • A guardian assumes complete responsibility for the children when they are with him or her.
  • A guardian has no say over the actions of the other guardian when the children are in that guardian's care.
  • There is no expectation of flexibility between the guardians.
  • A guardian does not plan activities for the children when they are with the other guardian.
  • Contact between the guardians is minimized and children are not asked to pass messages to the other guardian. When the guardians must communicate, they do so by writing in a book that the children take with them from one home to the other.

A recent example of parallel parenting being ordered is Sodhi v. Sodhi, 2014 BCSC 1622.

To further minimize disputes, guardians who are parallel parenting may be assigned specific parental responsibilities over which they will have sole authority. For example, one guardian might be responsible for educational and religious issues while the other is responsible for sports and music lessons.

Parallel parenting is not a term you will find in the Family Law Act or in the Divorce Act.

Reports and assessments

Parents, guardians, and the court sometimes need help in deciding what is in the best interests of the children and need to get someone else's input, which might be from a psychologist, clinical counsellor, family justice counsellor or social worker, or from the children themselves. The two most common ways of doing this are through needs of the child assessments, which used to be called "section fifteen reports" or "custody and access reports," or through views of the child reports.

Needs of the child assessments

Section 211 of the Family Law Act allows the court to order that an assessment be conducted of the children's wishes, the children's needs, and the ability of a person to meet those needs. Needs of the child assessments are helpful to the court and can be very useful when the parties are trying something other than court, like mediationA dispute resolution process in which a mediator facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator.", collaborative settlement processesA dispute resolution process in which the parties to a legal dispute and their lawyers agree that they will make every effort to resolve the dispute through cooperative, transparent negotiations, with the assistance of counsellors and neutral experts in financial issues and children's issues as necessary, without going to court. See "alternative dispute resolution.", or arbitrationA dispute resolution process in which an arbitrator hears the evidence and arguments presented by the parties to a legal dispute and makes an award which resolves the dispute and which is binding on the parties. See "alternative dispute resolution" and "family law arbitrator.".

The Supreme Court discussed the purposes of the old custody and access reports in a 2001 case called Gupta v. Gupta, 2001 BCSC 649. The Court's comments apply just as well to the new needs of the child assessments:

"The purpose of a [court-ordered report] ... is to assist the Court in determining the issues before it, including the paramount of issues of what is in the best interests of the children. The section itself contemplates that the person doing the investigation must be approved by the Court, and must be independent or neutral. ... The investigation is carried out for the purposes of the Court, and in the best interests of the children, and not those of the partial parents who are embroiled in what is seen as the dispute of their lives, who generally represent the extremes of every issue, and whose evidence is often found to be coloured to say the least."

A more recent case where the court discusses why a Section 211 Report should be ordered is Smith v. Smith, 2014 BCSC 61.

When a needs of the child assessment is required, the court will usually name a family justice counsellor or a particular psychologist or psychiatrist to conduct the assessment. In the Provincial Court, the court will almost always refer the parties to a family justice counsellor.

Ordinarily, the assessor will meet each of the parents separately and meet them each again in the presence of the children. If the children are old enough, the assessor may speak to the children separately. The assessor may also speak to other people who know the parents and their children, such as friends, family and neighbours, the children's teachers, and any counsellors or therapists.

Once the assessment is finished, a process that can take anywhere from two months to five months, the assessor sends the assessment to the parties, as well as to the court if the assessment was court ordered. These assessments can be used in two ways: to encourage settlementA resolution of one or more matters at issue in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the trial. See "action," "consent order," "family law agreements" and "offer."; and, at trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction.", to persuade the court that the parenting proposal of one parent or guardian is to be preferred over that of the other. The person who prepared the assessment can be called to testify at the trial and will be subject to cross-examinationThe portion of a trial where a party asks questions of a witness presented by the other party in order to challenge the witness’s recollection and truthfulness. The questions asked of the witness must be relevant to the issues and may be leading, that is, the question may suggest the answer. See "examination-in-chief," "evidence," and "leading question." as to how he or she conducted the assessment and reached his or her conclusions and recommendations.

It is important to remember that the function of the assessor in court is to present his or her recommendations and the evidence that he or she relied on, such as test scores and interview observations, in coming to those recommendations. At the end of the day, it is always up to the judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal. to decide the parenting arrangements for the children. A needs of the child assessment is merely the assessor's recommendation to the court based on his or her particular expertise as an experienced psychologist, psychiatrist, or family justice counsellor; the assessment is not a final determination of the issue.

For information on to how get a needs of the child assessment, see How Do I Get a Needs of the Child Assessment? It's located in the How Do I? part of this resource, in the section Other Litigation Issues.

Views of the child reports

The old law, the Family Relations Act, allowed expert witnesses to give reports in family law matters. Those reports were sometimes called Section 15 Reports and included Custody and Access Reports.

The new law, the Family Law Act, also allows for reports in family law matters. However, the Family Law Act is broader in that it allows a judge to decide how a child’s views will be considered by the court.

Section 211 of the Family Law Act allows the court to appoint a person to assess the following factors when there is an issue or dispute involving the care of children:

  • the needs of a child,
  • the views of a child, and
  • the ability and willingness of a partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." to “satisfy” (ie: to meet) the needs of a child.

Section 211 also specifies who can be appointed to conduct this assessment, and requires the person who is appointed to prepare a report.

While some people have assumed that the old Section 15 Reports have been replaced by Section 211 Reports, that isn't necessarily correct. The scope of a Section 211 Report can be either much broader or much narrower than a Section 15 Report, and it is important to be clear about who is conducting the assessment and what is being assessed.

There are two main types of assessments under section 211 of the Family Law Act:

  1. Those prepared by experts, generally psychologists.
  2. Those prepared by a broader category of people called family justice counselors, who are authorized by law to prepare these reports, but aren't necessarily experts.

Expert witnesses have a special role. There are rules about how expert evidenceOpinion evidence given by an expert at trial, in an affidavit or in a report. Opinion evidence is a statement about what a witness thinks or believes, rather than something personally known as a fact, and is generally not admissible at trial except when the opinion is provided by an expert. A person presented as an expert witness must be approved by the court as a qualified expert in his or her field. In family law, experts typically called to give evidence include accountants, business valuators, doctors, and psychologists. See "evidence" and "witness." is given. If someone is qualified as an expert, then he or she can provide the court with opinions about matters that are in dispute.

Because an expert can provide an opinionIn law, a lawyer's advice to his or her client; a lawyer's analysis of a legal problem; the views of an expert as to a matter at issue in an action. See "expert evidence." and make recommendations to the court, Section 211 Reports are often evaluative. Many people who prepare Views of the Child Reports say that they are non-evaluative, but that isn't necessarily the caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.". It is important when asking for or agreeing to a “Views of the Child Report” that the parties and the assessor are clear about what kind of assessment is to be conducted: evaluative or non-evaluative.

As section 37(2)(b) of the Family Law Act requires the court to consider the views of the child, and section 202 allows the court to decide how the child’s views are heard and presented, third parties can interview a child and prepare a non-evaluative Hear the Child Report. A Hear the Child Report presents a child’s views to the court. In British Columbia, the Hear the Child Society has a roster of interviewers who prepare non-evaluative reports.

Non-evaluative reports do not evaluate the responses of the child, they merely report what the child says, and often give some indication of what the child is doing as they talk. The child is not simply asked what they want between their parents. They are asked a wide ranging list of questions designed to give a good picture of what life is like for them, and where the problems may be.

Children's caregivers and extended family

People other than a child's biological parents may also have an interest in a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles, and so forth — although there's no reason at all why someone else, like an unrelated long-term caregiver or neighbour, couldn't also be important to a child. Most often, however, it's grandparents who feel the need to seek a legal role in their grandchildren's lives. For that reason, this discussion is written with grandparents in mind, although it applies equally to other people who are not a parent of a child.

Grandparents and other people who are not parents normally become involved in court proceedings dealing with children, as parties in their own right, in only a few situations:

  1. where one or both of the guardians of the children are dead,
  2. where one or both of the guardians have abandoned the children or the care of the children,
  3. where there are serious concerns about the fitness of the guardians to care for the children, or
  4. where they are being denied time or involvement with the children.

Their concerns are usually about:

  1. getting or maintaining contact with the children,
  2. supervising the parenting of the children when they are with a guardian, or
  3. being appointed as a guardian of the children.

No matter how valid or legitimate a grandparent's or other non-parent's concerns might be, the court will place a great deal of weight on the wishes of the parents. In a 2003 case of the Supreme Court, M.(D.W.) v. M.(J.S.), 2003 BCSC 1229 the court said that while it must give "paramount consideration" to the best interests of the child, "significant deference must be accorded the custodial parent and their ability to determine the child’s best interests."

Legislation

Two laws might apply to non-parents seeking guardianship of or contact with children. Where the children's parents or guardians are already in court about the children, that will be either the federal Divorce Act, if the guardians are or were married, or the provincial Family Law Act. If the parents or guardians are not involved in a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. between each other, it will be the Family Law Act.

Each law has different rules about how and when non-parents can apply in court, and it's important to understand which law might be applicable.

The Divorce Act

According to s. 16(1) of the Divorce Act, the court can make an order for access or custody on the application of a spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an applicationA request to the court that it make an order for a specific remedy or relief usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief.".

Since we're talking about the Divorce Act, a court proceeding must have already started between married spouses or formerly married spouses before the grandparents can step in; there must be an existing proceeding in which to bring the application. A grandparent cannot start a court proceeding under the Divorce Act, since the act only applies to disputes between married spouses.

The Family Law Act

The Family Law Act talks about guardians who have parental responsibilities and have parenting time with children, and about people who are not guardians who have contact with a child.

Any person can apply to be appointed as the guardian of a child under s. 51 of the act. However, these applications can be difficult and time-consuming and the court must be satisfied that the appointment is in the best interests of the child. A person who is applying to become the guardian of a child, an applicant, must fill out a special affidavit required by the Provincial Court (Family) Rules and the Supreme Court Family Rules that talks about:

  1. the applicant's relationship to the child,
  2. the other children currently in the care of the applicant,
  3. any history of family violence that might affect the child, and
  4. any previous civil or criminal court proceedings related to the best interests of the child.

Applicants must also get a new criminal records check, and a records check from the Ministry of Children and Family Development (MCFD).

Any person can apply for contact with a child under s. 59 of the act. The court must be satisfied that the contact asked for is in the best interests of the child. People who are applying for contact don't need to get a criminal records check or an MCFD records check done.

Custody and guardianship


There is a strong presumption in favour of the natural or adoptive parents of the children. The court will generally be inclined to allow the children to remain with their parent or parents unless a strong case can be shown that the parents are neglectful and that the children are suffering in their care. To quote from a 1992 case of the British Columbia Supreme Court, Reid v. Watts, 1992 CanLII 916 (BC SC), Vancouver Registry No. A913221:

"Parental claims will not be lightly set aside except in clear cases where the welfare of a child cannot otherwise be achieved."

The Supreme Court of CanadaThe highest level of court in Canada. This court hears appeals from the decisions of the Federal Court of Appeal and the provincial courts of appeal, including the Court of Appeal for British Columbia. There is no court to appeal to beyond this court. See "Court of Appeal" and "Supreme Court." emphasized the children's best interests a bit more strongly in Racine v. Woods, [1983] 2 SCR 173 a case from 1983:

"The law no longer treats children as the propertySomething which can be owned. See "chattels" and "real property." of those who gave them birth but focuses on what is in their best interests."

Nevertheless, grandparents and other non-parents who are seeking custody or guardianship of a child will face a difficult challenge, especially where both guardians are still in the picture, even if they have been actively involved in caring for the children themselves. Since actual, concrete harm must usually be shown before grandparents are awarded custody, it can be critical to gather as much documentary evidence as possible. Some helpful sources include: police records; the records of social workers involved with the children; files from the Ministry for Children and Families; and, a psychologist's report.

Factors that the courts have taken into consideration in awarding custody to a non-parent have included:

  • ill-treatment, mistreatment and neglect of the children,
  • chronic drug or alcohol use, a partying type of lifestyle,
  • instability of the guardians' lifestyle and living situation,
  • abandonment of the children by the guardians, or an existing status quo in which the non-parent is primarily responsible for the care of the children, and
  • poor parenting skills on the part of the guardian.

Grandparents and other non-parents shouldn't be too discouraged by the generally pessimistic tone of this discussion. There are quite a few cases in which grandparents have been awarded custody, guardianship and/or contact with their grandchildren. It is possible to succeed on a custody or guardianship application, although the chances of success depend wholly on the circumstances of each case.

Access and contact

There is a big difference between seeking custody or guardianship and seeking access or contact. In custody cases, the courts are concerned with the fundamental living arrangements and the health and welfare of the children. In court proceedings for access or contact, the parent usually has custody and no one is challenging the right of the parent to control his or her child's upbringing. As a result, the court will place an even greater emphasis on the parent's discretion and judgment.

Grandparents and other non-parents do not have a presumptive right of access to or contact with children under either the Divorce Act or the Family Law Act, but they can ask the court to make an order giving them access to or contact with their grandchildren. The 1993 British Columbia case of Chapman v. Chapman, 1993 CanLII 2598 (BC SC) sets out the general rules governing applications for access or contact by non-parents:

  • The burden is on the non-parent to show that the proposed access or contact is in the child's best interests.
  • The child's guardians have a significant role and the court should be slow to interfere with the guardians' discretion, and should only do so when satisfied that the access or contact is in the child's best interests.
  • It is not in the child's best interests to be placed in circumstances of conflict between guardians and non-parents, and access or contact should not be given where it would only escalate the conflict between the parties.
  • Non-parents may also have to demonstrate that they offer some positive benefit to the child before access or contact will be allowed, and they must demonstrate that the child's time with them will be in the child's best interests. Normally, grandparents and other non-parents are allowed only the amount of access or contact that the guardians will agree to.

Where both guardians are still in the picture, the court will usually require that grandparents' access or contact occurs during the time that their child has the grandchild. In other words, maternal grandparents will usually have access or contact, if the court makes the order at all, during the mother's time with the child. Where only one guardian is in the picture, the court will usually determine what access or contact the grandparents ought to have independently of the interests of the guardian.

As with applications for custody or guardianship, grandparents and other non-parents should not be discouraged by the generally pessimistic tone of this discussion. There are numerous cases in which grandparents have been awarded time with their grandchildren; it is possible to succeed on an application for access or contact.

Financial support

When a non-parent obtains custody of a child or an order that the child live mostly with him or her, that person can apply for child support to be paid by the guardians of the child. The same rules will apply to a non-parent's application for child support as apply to a guardian's application, except that grandparents and other non-parents can only apply for child support under the Family Law Act; they cannot apply under the Divorce Act. See section 147 and 149 of the Family Law Act.

Grandparents are also entitled to ask for financial support from the provincial government to help meet the cost of caring for any grandchildren in their care. The province of British Columbia pays grandparents who are looking after their grandchildren at the same rate as foster parents. It's not a princely sum, but it's better than a kick in the teeth.

Resources and links

Legislation

Links


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