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Difference between revisions of "Children and Parenting after Separation"

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Children and Parenting after Separation (view source)

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This page has now been fully reviewed; however, I would like the chance to re-read before confirming the legal accuracy date. I hope to do so this week.
(This page has now been fully reviewed; however, I would like the chance to re-read before confirming the legal accuracy date. I hope to do so this week.)
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==Reports and assessments==
==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''.  
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.  


===Needs of the child assessments===
The terms that are sometimes used are:


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 mediation, collaborative settlement processes, or arbitration.
# Custody and access reports;
# Section 211 reports; or
# Views of the child reports.


The Supreme Court discussed the purposes of the old custody and access reports in a 2001 case called ''[http://canlii.ca/t/4xfd Gupta v. Gupta]'', 2001 BCSC 649. The Court's comments apply just as well to the new needs of the child assessments:
=== Custody and access report===
 
A Custody and Access Report is a report that is prepared by a neutral third party, usually a psychologist or registered clinical social worker. This is an older term and in most cases, the courts will be making an order for a “section 211 report,” which is a report prepared pursuant to section 211 of the ''Family Law Act''.
 
The B.C. Supreme Court discussed the purposes of the old custody and access reports in a 2001 case called ''[http://canlii.ca/t/4xfd Gupta v. Gupta]'', 2001 BCSC 649, which is also sometimes referred to as ''G. (L.E.) v. G.(A.)''. The Court's comments apply just as well to reports prepared pursuant to section 211 of the ''Family Law Act'':


<blockquote>"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."</blockquote>
<blockquote>"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."</blockquote>


A more recent case where the court discusses why a Section 211 Report should be ordered is ''[http://canlii.ca/t/g2nxw Smith v. Smith]'', 2014 BCSC 61.
A more recent case where the court discusses why a section 211 report should be ordered is ''[http://canlii.ca/t/g2nxw Smith v. Smith]'', 2014 BCSC 61.
 
===Section 211 reports===


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.
Section 211 of the ''[[Family Law Act]]'' allows the court to order an assessment of the needs of a child, views of a child, and the ability of a party to meet those needs. A section 211 report can be limited to one enquiry or be a full report including  an assessment of all three areas (a “full” section 211 report).  


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.
Section 211 reports must be in writing and the court can make orders as to who will prepare the report and how the report is to be paid for.
 
Who will prepare the report depends on what type of report is required and if there is money to pay for the report.
When people cannot afford a private assessment, the court may order that a section 211 report be prepared by a family justice counsellor. Unless the parties otherwise agree, the Provincial Court will almost always order that a report be prepared by a family justice counsellor.
 
Section 211 reports prepared by a family justice counsellor usually take a number of months to be prepared.
A section 211 report prepared by a psychologist usually includes psychological testing and assessment.
 
Regardless of who assesses the family, if the report is a full section 211 report, 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 settlement; and, at trial, 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-examination as to how he or she conducted the assessment and reached his or her conclusions and recommendations.
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 settlement; and, at trial, 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-examination as to how he or she conducted the assessment and reached his or her conclusions and recommendations.
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===Views of the child reports===
===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.''
There is confusion between a “views of the child report” (which is a section 211 report) and a voice of the child or Hear the Child Report.  


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 37(2)(b) of the ''[http://canlii.ca/t/52cd2 Family Law Act]'' requires the court to consider the views of the child. Section 202 allows the court to decide ''how'' the child’s views are heard and presented.  


Section 211 of the ''Family Law Act'' allows the court to appoint a person to  <span class="noglossary">assess</span> the following factors when there is an issue or dispute involving the care of children:
Third parties can interview a child and prepare a "views of the child report" or a non-evaluative ''Hear the Child Report.''
* the needs of a child,
* the views of a child, and
* the ability and willingness of a party 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.''
A Hear the Child Report presents a child’s views to the court. In British Columbia, the [http://www.hearthechild.ca Hear the Child Society] has a roster of interviewers who prepare non-evaluative reports.


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.
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.


There are two main types of assessments under section 211 of the Family Law Act:
A "views of the child report" may contain opinion and recommendations in addition to communicating a child's views.
# Those prepared by ''experts,'' generally psychologists.
# 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 evidence 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 ''opinion'' 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 case. 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 ''[http://canlii.ca/t/52cd2 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 [http://www.hearthechild.ca 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==
==Children's caregivers and extended family==
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#being appointed as a guardian of the children.
#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, ''[http://canlii.ca/t/572w 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."
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 B.C. Supreme Court, ''[http://canlii.ca/t/572w 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===
===Legislation===
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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.
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 [http://canlii.ca/t/85pb Provincial Court (Family) Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules]
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 [http://canlii.ca/t/85pb Provincial Court (Family) Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules]
that talks about:
that talks about:


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Applicants must also get a new criminal records check, and a records check from the Ministry of Children and Family Development (MCFD).
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.
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===
===Custody and guardianship===
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*poor parenting skills on the part of the guardian.
*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.
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. For example in a B.C. Supreme Court decision ''Popovic v. Andjelic'', 2014 BCSC 2522 http://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc2522/2014bcsc2522.html?autocompleteStr=Popovic%20v.%20Andjelic&autocompletePos=1, the child and her mother resided with the maternal grandparents. The child's father lived in another country. After the mother died suddenly, the grandparents applied to be appointed the guardians of the child and the court granted their request. The father also remained a guardian but without [[parental responsibilities]].


===Access and contact===
===Access and contact===
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*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.
*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.
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. See the B.C. Provincial Court decision called ''N.H. v. D.H.'', 2013 BCPC 413 http://www.canlii.org/en/bc/bcpc/doc/2013/2013bcpc413/2013bcpc413.html?resultIndex=1
 
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.
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.
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===Financial support===
===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]]''.  
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 parents or 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.
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.
Sam Rapoport
42

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