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Difference between revisions of "Divorce Act Basics"
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===Who is a "child of the marriage?"=== | ===Who is a "child of the marriage?"=== | ||
The ''[[Divorce Act]]'' talks about "children of the marriage" rather than just children. A child is a child of one or both spouses who is under the provincial age of majority, or older but "unable to withdraw" from the spouses' care. In British Columbia, the age of majority is 19. In other provinces, like Alberta and Manitoba, the age of majority is 18. | The ''[[Divorce Act]]'' talks about "children of the marriage" rather than just children. A child of the marriage is a child of one or both spouses who is under the provincial age of majority, or older but "unable to withdraw" from the spouses' care. In British Columbia, the age of majority is 19. In other provinces, like Alberta and Manitoba, the age of majority is 18. | ||
Although a court can make orders about the care of children who are under the age of majority, in practice the court usually won't make orders | Although a court can make orders about the care of children who are under the age of majority, in practice the court usually won't make orders involving children who are close to the age of majority. Children who are that old are usually old enough to make decisions for themselves about where they'd like to live, and the court will usually respect their decisions. | ||
===How are decisions about children made?=== | ===How are decisions about children made?=== | ||
Section 16(8) of the ''[[Divorce Act]]'' says that the court should take "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" into <span class="noglossary">account</span> when making decisions about children. | Section 16(8) of the ''[[Divorce Act]]'' says that the court should take "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" into <span class="noglossary">account</span> when making decisions about children. The act doesn't go into much further detail than this except to say, at s. 16(10), that: | ||
The | |||
<blockquote><tt>the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.</tt></blockquote> | <blockquote><tt>the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.</tt></blockquote> | ||
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This doesn't mean that it is ''always'' best for a child to have an equal or near-equal amount of time with each spouse. It means that the court should give the child as much time with each spouse ''as is consistent'' with the child's best interests. That might be an equal or a near-equal amount of time, or it might be every other weekend, or it might be no time at all. | This doesn't mean that it is ''always'' best for a child to have an equal or near-equal amount of time with each spouse. It means that the court should give the child as much time with each spouse ''as is consistent'' with the child's best interests. That might be an equal or a near-equal amount of time, or it might be every other weekend, or it might be no time at all. | ||
=== | ===Who can ask for orders about custody and access?=== | ||
Under s. 16(1) of the ''[[Divorce Act]]'', a spouse or "any other person" can apply to court for an order that he or she has custody of or access to a child. However, a person who is not a spouse cannot make the application without first getting the court's permission. | Under s. 16(1) of the ''[[Divorce Act]]'', a spouse or "any other person" can apply to court for an order that he or she has custody of or access to a child. However, a person who is not a spouse cannot make the application without first getting the court's permission. | ||
===What rights does custody give?=== | |||
=== | |||
Under s. 16(4), the court can order that one or more persons have custody of | "Custody" sometimes means the house where the children live most of the time, but it can also mean having the right to get information about the children's activities, schooling and wellbeing, as well as the right to participate in making decisions about those things. Under s. 16(4) of the ''[[Divorce Act]]'', the court can order that one or more persons have custody of a child. | ||
*When only one person has custody, that person has ''sole custody'' of the child. | *When only one person has custody, that person has ''sole custody'' of the child. | ||
*When more than one person has custody, they together have ''joint custody'' of the child. | *When more than one person has custody, they together have ''joint custody'' of the child. | ||
A spouse with sole custody has the child's home and is responsible for the child on a day-to-day basis. | A spouse with sole custody has the child's home and is responsible for the child on a day-to-day basis. | ||
Joint custody does not always mean that the spouses share the child's time equally or near-equally. Joint custody means that both spouses are expected to play a role in raising their children and in making decisions about their care and upbringing; whether they share the children's time equally or have very unequal amounts of time with the children is another question. | |||
====What rights does access give?==== | ====What rights does access give?==== | ||
Access usually | Access usually refers to the parenting schedule of the spouse who sees the child for the least amount of time, or to the parenting schedule of someone who isn't a spouse. More importantly, under s. 16(5) of the ''Divorce Act'', a spouse who has access also has: | ||
<blockquote><tt>the right to make inquiries, and to be given information, as to the health, education and welfare of the child.</tt></blockquote> | <blockquote><tt>the right to make inquiries, and to be given information, as to the health, education and welfare of the child.</tt></blockquote> | ||
