Difference between revisions of "Parenting Orders, Guardianship, and Contact (3:XI)"

Disputes over parenting time of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Parenting time decisions can always be changed, however, courts rarely make such changes. Thus, the decision about who gets interim parenting time is particularly important. Children usually stay with the parent who has provided primary care in the past and who can spend the most time with them. Sometimes, courts will order joint parenting time on an interim basis so that neither parent’s position is prejudiced.  

The best interests of the child is the '''only''' consideration in determining parenting time and contactand parenting arrangements.  

The case law on parenting time and guardianship has developed to the point where there is a presumption in favour of joint parenting time or both parents being guardians(although there is no legislative presumption). A parent seeking sole parenting time will generally have to show that there is a serious defect in the other person’s parenting skills, that the other person is geographically distant, or that the parents are utterly unable to communicate without fighting before the Court will consider granting such an application, and in the last case, the Court may explore other options such as Parenting Coordination or parceling out decision making and responsibilities to address the communication issue instead of granting sole parenting time to one parent.

Amendments to the DA resulted in changes to the terms of guardianship:

The Supreme Court has jurisdiction to deal with all matters relating to parenting time, guardianship and contact with children, pursuant to the ''DA'', the ''FLA'', and the ''CFCSA''. Although, the Court almost never deals with the ''CFCSA'' unless there is the matter of adoption to be considered. The Supreme Court also has jurisdiction over orders restraining contact or entry to the matrimonial home.  

A written agreement about parenting time or guardianship may be given the force of a court order under section 44 of the ''FLA''. Any orders made under the ''FRA'' are still in force. An order made under the ''DA'' can be registered for enforcement in any other province’s Supreme Court registry.

The Provincial Court has jurisdiction to deal with all matters relating to parenting time, guardianship and contact with children, and the ''Child, Family and Community Service Act'' [''CFCSA'']. This includes restraining orders but does not include orders restraining entry to the matrimonial home. A written agreement about parenting time or guardianship may be given the force of a court order, or s 44 of the ''FLA'', if it is filed in court.  

These factors should not be viewed as a checklist. Rather, the discretionary, contextual, and complex nature of parenting time cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interests argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.  

The Court will generally consider the child’s health and emotional well-being, his or her education and training and the love, affection and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a parenting time order relating to a teenager to be practical, it  must reasonably conform to the wishes of the child ([http://canlii.ca/t/1dxml ''O’Connell v McIndoe'' (1998), 42 R.F.L. (4th) 77 (BCCA)], [http://canlii.ca/t/23fnw ''Alexander v Alexander'' (1988), 15 R.F.L. (3d) 363 (BCCA)]).  

Race and aboriginal heritage are relevant considerations, but neither is determinative of parenting time alone. The importance of race differs in  adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to his or her race or culture ([http://canlii.ca/t/51z8 ''Van de Perre v Edwards'',  2001  SCC  60]). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests ([http://canlii.ca/t/1f50z ''H (D) v M (H)'', [1997<nowiki>]</nowiki> BCJ No 2144 (QL) (SC)]).  

Clients may wish to vary a parenting time order. The threshold for a variation of a parenting time or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents ([http://canlii.ca/t/1fr99 ''Gordon v Goertz'', [1996<nowiki>]</nowiki> 2 SCR 27]).  

=== 2. Types of Parenting Time Orders ===  

An interim order is a temporary order made once the proceedings have commenced but before the final order is pronounced. Courts will usually make interim parenting time orders while an action in divorce is underway, with an eye to the child’s immediate best interests. Courts tend to favour stability, so an interim order is likely to favour the party with parenting time at the time of the marriage breakdown. This presumption toward stability can give an interim order substantial weight in determining a final parenting time order.

In joint parenting time, both parents have parenting time of the child. While the child may reside primarily with one parent, the parents cooperate in raising the child, acting as both joint custodians and guardians of the child. In British Columbia, there is a presumption toward joint parenting time.

“Shared parenting time” is a term used by the ''Federal Child Support Guidelines'', but not by either the ''DA'' or the ''FLA''. Shared parenting time is a form of joint custody in which the child spends an almost equal time with each parent. Typically, the child would be switching homes on a frequent basis, such as every few days or once a week. This usually requires that the parents live near one another and have good communication skill.  It also requires that the child is able to adapt to living in two homes.  Any agreement for shared parenting time will affect child support.

A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the ''FLA'', s 188 that carries a possibility of criminal proceedings ([http://canlii.ca/t/7vf2 ''Criminal Code'', RSC 1985, c C-46], ss 280-281). The ''Criminal Code'' makes it an offence for a non-custodial parent to abduct a child. Where a parenting time order is in effect, abduction amounts to contempt of Court.  

*(ii) The relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life  

After making an interim parenting time order, a court will often grant access on an interim basis. Usually, such an order will favour the status quo, in order to minimize disruption for the child.

Under the ''FLA'', the Court may exercise its jurisdiction to make parenting time and access orders if one of the following conditions is met:  

If one spouse is not in B.C., the only B.C. Court that the B.C. residing spouse can proceed in is the B.C. Supreme Court, because the Provincial Court has no jurisdiction outside of the province.

Effective May 2021, the repealed Provincial Court (Family) Rules were replaced by the new Provincial Court Family Rules found at https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/120_2020. The Guardianship Affidavit (Form 5) is included in the new Rules and requires identical information to what is stated above (see Rules 26, 51, and 172).     

At the time of birth, the two parents of a child are presumed to be their biological parents unless the child was born as a result of assisted reproduction (section 26, ''FLA''). Assisted reproduction has, at present, always included the use of one or more of donated eggs, donated sperm, and the cooperation of a woman who is willing to carry the baby to term. Section 24 of the FLA clarifies that a donor of eggs or sperm is not the parent of a child on the basis of their biological contribution alone – donors cannot be made to pay child support unless there is some other connection to the child which justifies holding that the person is a parent under the FLA. If a donor wishes to be regarded as a parent, written agreements can be drafted and signed before the child’s birth which would substantiate their parental claim under the FLA. Unlike donors, surrogates are presumed to be a parent of the child under the ''FLA'' since they are the birth parent. However, this presumption can be overcome by the intended parents and the surrogate mother signing a written agreement before the child is conceived which states that the surrogate mother will not be a parent to that child. Without such an agreement, the surrogate and sperm-providing parent would be the presumed parents.

*(j) Requesting and receiving from third parties health, education or other information respecting the child;  

**(i) Starting, defending, compromising or settling any proceeding relating to the child, and  

**(ii) Identifying, advancing and protecting the child's legal and financial interests;  

*a) One parent has the final word, however the other party can apply to court if they disagree with the deciding parent. In particularly high-conflict cases, giving one parent decision-making authority may be the only solution ([http://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc2409/2015bcsc2409.html?autocompleteStr=BCSC%202409&autocompletePos=1 ''Friedlander v Claman'', 2015 BCSC 2409]);

The updated DA also sets out the required contents of a parenting order (16.1(4)). A parenting order allocatse parenting time—and, correspondingly day-to-day decision-making responsibilities—and may include a schedule and permitted means of communication between a child and a person with parenting responsibilities. Parenting orders submitted by the parties must be mutually agreed to when submitted, though a court may modify according to the best interests of the child.