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Children Who Resist Seeing a Parent

2019-04-16T19:12:03Z

Samantha Rapoport: comprehensive review

{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
|ChapterEditors = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]]
}}

Parental influence is a normal part of parenting and socialization. It is how parents teach their children and it only becomes concerning if the influence benefits the parent, not the child.

Preference is also a normal part of life; children can prefer one parent because they have shared interests or temperament. It becomes problematic if a child over identifies with one parent to the detriment of the child’s relationship with the other (alignment).

To ''alienate'' means to make separate. To ''estrange'' means to make indifferent. In family law, both terms relate to a breakdown in a child's relationship with a parent.

There can be good reasons for a child not wanting to see another parent: bad behaviour by a parent can result in estrangement. Concerns arise when there is no reason or no real reason for the child’s behaviour.

Children can become estranged from one parent for a good reason that has nothing to do with the behaviour of the other parent. In some cases, a child's relationship with one parent can be damaged by the actions of the other parent, sometimes in the course of a custody battle and sometimes intentionally. Where children's relationship with one parent is intentionally damaged, usually by the actions of the other parent, those children are often described as being alienated from the other parent.

This section will provide an introduction to the problem of alienated and estranged children, and will discuss what the experts have to say about a largely discredited theory called Parental Alienation Syndrome. It will also look at ways of dealing with alienated and estranged children during parenting disputes, and will provide a selection of helpful online and printed resources.

==Introduction==

The end of a romantic relationship is always difficult for parents. It can be just as difficult, if not worse, for their children. How children deal with the end of their parents' relationship has to do with two things: the age and maturity of the children, and how their parents manage the breakdown of their relationship.

Children don't see things in terms of custody or parental responsibilities when their parents' relationship ends. All they know is that something has gone wrong. Mom and dad are yelling at each other a lot, and then, one day, mom or dad isn't there anymore. Young children won't understand these adult problems. Children who are in primary school will have a better idea, since they'll have friends whose parents have separated. Pre-teens and teens may seem to have a much more grown-up grasp of things as they'll have lost relationships of their own, and may be able to appreciate the idea that their parents' relationship has ended. How children cope with their parents' separation changes as they grow older and more mature.

Things are a lot different for parents. A significant relationship has ended, and in the midst of all of the emotions that go along with that — grief, anger, jealousy, love and loss — they might find themselves also having to deal with some extremely difficult legal issues. It's even worse where the parents wind up fighting about things in court.

Litigation can have a very profound impact on people. At its core, litigation is an adversarial process: each parent is fighting the other in order to "win," and where there's a winner there's always a loser. This sort of approach to a dispute often polarizes parents and encourages them to take extreme positions. What makes this so much worse is that the parents are both fighting about something they cherish dearly, their children, and they are also fighting against someone whom they used to deeply love.

In circumstances like these, it can be easy to forget how important it is that the children maintain a positive, loving relationship with the other parent. It can also be easy to overlook the importance of managing the children's exposure to and perception of their parents' conflict. One parent's view of the other becomes clouded by hatred, malice and spite, and nothing the other parent can do is ever right. This attitude is almost impossible to shield from the children. Whether intentionally or unintentionally, the children are inevitably exposed to these negative views which, without interference, can come to colour the children's own views of the other parent.

===Children's experiences of separation===

It is important to remember that while one parent's thoughtless comments about the other parent can have an impact on how a child sees the other parent, so too will the child's own experience of the separation. This can include:

*blaming the parent who left for breaking up the family,
*seeing a parent as injured by the actions of the other parent,
*sympathizing with an emotionally upset parent, and/or
*missing and feeling sad for the parent that they see less often.

These feelings may have nothing at all to do with any blameworthy conduct on the part of either parent, but they can cause a child to feel closer to one parent than the other. Further, there a number of normal reasons why a child might feel closer to one parent even in families that haven't separated, such as:

*similarities in the temperament of the child and one of the parents,
*the parent's gender,
*interests the child shares with a parent, and/or
*how the parent handles discipline.

There are, of course, ways that parents can behave, intentionally and unintentionally, that will encourage a child to drift towards one parent and away from the other that are blameworthy. Remember, however, that there are normal reasons why a child's experience of divorce may align with one parent over the other that have nothing to do with a parent's conduct.

===Resisting visits with a parent===

When a child begins to drift apart from a parent, the first sign that this might become a serious problem often occurs when the child begins to express a reluctance to spend time with the other parent. It is important to distinguish a simple reluctance from a more serious problem like estrangement or alienation. It is also important to distinguish between a reluctance that stems from a child and a reluctance that is fostered by a parent. In a sense, this is the key difference between estrangement and alienation.

Normal reasons why a child might resist parenting time or contact include:

*age-appropriate separation anxieties,
*inability to cope with the transition between homes, especially where there is a lot of conflict between the parents,
*not wanting to leave an upset parent at home, and/or
*not liking the other parent's parenting style.

Of course, any resistance to separation is difficult for both parents. For the parent sending the child on the visit, it can be heart wrenching to force the child out the door. For the parent receiving the child, it can be devastating to hear — from the other parent or the child — that the parenting time or contact is unwelcome, and to experience the rejection that this entails.

These normal reasons why a child would be reluctant to see a parent can be aggravated by the unintentional conduct of each parent. Separated parents have a duty to nurture their child's relationship with the other parent. In the context of parenting time and contact, this means encouraging the child to look forward to seeing the other parent. In general, this means actively fostering the child's relationship with the other parent and refraining from making negative remarks about the other parent.

In high-conflict situations, even parents who understand this basic duty can unconsciously telegraph their feelings about the other parent to the child. Children are not stupid; they know something's not right. Even young children will pick up on non-verbal clues to a parent's feelings.

This sort of unintentional communication of emotion includes:

*making faces, grimacing, groaning, cringing or shuddering when the other parent is mentioned,
*arguing with the other parent when the children can see or hear the dispute,
*making negative comments about the other parent when the children are within earshot,
*using an emotionless or negative tone of voice when speaking to the children about the other parent, and/or
*reacting in a flat or negative manner when the children discuss the other parent or their activities with that parent.

Even though in these examples nothing is actually being said to the children to discourage their relationship with the other parent, the children will pick up on the implications these behaviours suggest: there is something bad about one parent which is hurting the other parent. This sort of behaviour will inevitably encourage and reinforce any resistance the child might have to seeing the other parent.

When a child begins to express a reluctance to visit the other parent, both parents must act to stop the problem from getting worse.

For the parent who has the child most often, this means that you must:

*work harder at encouraging the child to look forward to the visits,
*make sure that you are not a part of the problem by unconsciously telegraphing your problems with the other parent,
*make an effort to remind the child about the other parent's positive traits,
*consider getting the child in to see a counsellor about the separation, and
*seriously consider taking a parenting after separation course.

For the parent whom the child is resisting seeing, this means that you must:

*work harder at making the child feel welcomed and listened to in your home,
*re-examine your approach to parenting issues, particularly if you were the disciplinarian during your relationship with the other parent,
*make sure that you are not insulting or mocking the other parent when the child is within earshot, and
*seriously consider taking a parenting after separation course.

None of these solutions may be effective if the child's opinion and emotions are too entrenched, if the parents are simply too angry with one another to cooperate effectively, or if one of the parents is actively working to undermine the other parent's relationship with the child.

When things go too far, or when a problem is left unchecked, a child's simple preference for one parent can develop to an extreme point, where the child is estranged or alienated from the other parent.

===Knowing when there's a problem===

An otherwise normal resistance to parenting time or contact can cross the line when the child's opinion of the parent and their emotional attachment to that parent begins to change. Temper tantrums about a visit, and expressions of rage and hate should send a loud and clear signal that both parents have to work a lot harder to help the child through their experience of the separation.

Mild expressions of a change in the child's attachment to a parent include:

*expressing ambivalence about visiting the parent (not caring one way or the other about seeing the parent),
*grumbling about having to go to see the other parent, and
*stating a preference for an activity (playing a game, seeing friends and so forth) over seeing the other parent.

More serious expressions of a change in the child's attachment to a parent include:

* expressing a preference for one parent over the other, and a general ambivalence about the other parent,
* expressing a preference for one home over the other,
* expressing a worry about missing the parent the child is leaving,
* being upset that an activity (playing a game, an outing, seeing friends and so forth) will be interrupted by the visit,
* stating that visits with other parent are boring, and/or
* being reluctant to speak to the other parent on the telephone.

Still more serious expressions of a change include:

* stating that they don't like the other parent,
* occasionally putting the other parent down,
* expressions of concern for the well-being of the parent the child is leaving for the visit (older children),
* crying before the visit (younger children),
* complaining that it's not fair to have to visit (older children),
* offering promises (studying harder, doing more chores and so forth) in exchange for not having to go on the visit,
* claiming that the other parent doesn't parent properly (bad food, unfair discipline, unwanted outings and so forth), and/or
* refusing to talk to the other parent when they telephone.

The most serious expressions of a change in the child's attachment to a parent include:

* pitching temper tantrums before leaving for the visit (younger children),
* becoming enraged about being forced to go to the other parent (older children),
* stating that they hate the other parent,
* threats about running away or involving the police (older children),
* pleading to do anything except go on the visit,
* making bizarre and unlikely claims about the other parent's conduct (abuse, neglect and so forth), and/or
* constantly making insulting comments about the other parent or putting the other parent down ("he's such a jerk," "she can't do anything right," and so forth).

Even mild indications that a child is growing emotionally distant from a parent are disturbing and warrant some attention by both parents. When a child is clearly heading from feeling ambivalent about a parent to feeling hatred towards that parent, parents should seriously consider getting the child professional help from counselors who specialize in helping children cope with and adjust to the separation of their parents. It is often helpful for the parents themselves to find some counselling and guidance on how to approach parenting time and contact issues with the child.

===Estranged children===

The difference between an estranged child and an alienated child is that an estranged child has grown apart from the parent for reasons that are, to be blunt, reasonable and realistic. An alienated child, however, is the victim of one parent's efforts to destroy the child's relationship with the other parent.

An estranged child is either absolutely ambivalent about the other parent or enraged by the other parent. These feelings are, however, justified by the child's experience of the separation or by the child's experience of that parent.

These children are usually estranged as a result of:

*witnessing violence committed by that parent against the other parent,
*being the victim of abuse from that parent,
*the parent's persistently immature and self-centered behaviour,
*the parent's unduly rigid and restrictive parenting style, and/or
*the parent's own psychological or psychiatric issues.

The point here is that the feelings of estranged children are based on the child's lived experiences. In cases of estrangement, the child's rejection of a parent is ''reasonable'', and is an adaptive and protective response to the parent's behaviour.

The feelings of alienated children, however, are neither reasonable nor the result of the rejected parent's conduct.

===Alienated children===

Alienated children usually reject a parent without guilt or sadness and without an objectively reasonable cause. The children's views of the alienated parent are usually grossly distorted and exaggerated.

Alienation is most easily defined as the complete breakdown of a child's relationship with a parent as a result of a parent's efforts to turn a child against the other parent. Typically, alienation is only a problem when the parents are involved in extremely bitter and heated litigation. Not every case of high conflict litigation involves alienation, but alienation can and does happen. A 1991 study by the American Bar Association found indications of alienation in the majority of 700 high-conflict divorce cases studied over 12 years.

Intentional alienation of a child against one parent is absolutely wrong and virtually unforgivable. In some circumstances, alienation can amount to child abuse. As J.M. Bone and M.R. Walsh put it in their article "Parental Alienation Syndrome: How to detect it and what to do about it," published in 1999 in the Florida Bar Journal, 73(3): 44-48:

<blockquote>"Any attempt at alienating the children from the other parent should be seen as a direct and willful violation of one of the prime duties of parenthood."</blockquote>

The parent most likely to attempt to alienate a child from the other parent is the parent who has the child for most of the time, usually because of an interim order or some other sort of temporary arrangement.

The sorts of behaviours that suggest an intention to alienate a child from the other parent include, among other things:

*making negative comments about the other parent to the child,
*stating or implying that the child is in danger when with the other parent,
*grilling the child about their activities, meals and living conditions when with the other parent,
*stating or implying that the activities, meals and living conditions offered by the other parent are deficient or problematic,
*setting up activities that the child will enjoy during times when the child is with the other parent,
*telling the child that it's up to them to decide whether to visit the other parent, and/or
*stating or implying that the child is being abused or maltreated by the other parent.

The consequences of parental alienation or attempted alienation can be quite profound. Alienation at its best is a form of psychological programming; at worst, it's brainwashing. Alienation may result in the permanent destruction of a child's relationship with a parent and in long-lasting psychological problems for the alienated child.

In their article, Bone and Walsh conclude that when alienation has been identified, the solution is to deal with it immediately:

<blockquote>"When attempted [parental alienation syndrome] has been identified, successful or not, it must be dealt with swiftly by the court. If it is not, it will contaminate and quietly control all other parenting issues and then lead only to unhappiness, frustration, and, lastly, parental estrangement. ...

While any application which flows from a suspicion of alienation will be costly and worsen the conflict between the parents, it is urgent that the alienation be stopped immediately if its long-term impact is to be avoided."</blockquote>

===A few notes from JP Boyd===

I am not a psychologist, a psychiatrist or a counsellor. As a result this section should be read with a grain of salt, as it is based on my observations of my clients' experiences, a bit of research, and some common sense. For the same reason, be cautioned that this section should not be used as an authority for the propositions it sets out.

I also wish to acknowledge that the bulk of this section was drawn from two sources in particular: Dr. Deirdre Rand's 1997 article, "[http://www.fact.on.ca/Info/pas/rand11.htm The Spectrum of Parental Alienation Syndrome (Part II)]" in the American Journal of Forensic Psychology; and, a 2001 article by Drs. Joan Kelly and Janet Johnston, "[http://jkseminars.com/pdf/AlienatedChildArt.pdf The Alienated Child: A Reformulation of Parental Alienation Syndrome,]" published in Family Court Review. Both articles are excellent and should be read if you believe that estrangement or alienation is an issue in your family.

==What the experts say about parental alienation==

The alienation of children from parents in the course of high-conflict family law litigation was first noticed by the mental health community in 1976. In 1987, Dr. Richard Gardner gave this problem the label "Parental Alienation Syndrome" (PAS), which he used to describe a disorder in children that occurred in the course of a custody dispute.

Dr. Gardner's interpretation was not without controversy and has continued to be studied, reviewed and revised by the mental health community. In fact, I think it's fair to say that PAS, as a theory, has largely been discredited. No one doubts that parental alienation can occur when parents separate; the questions largely concern whether PAS is a diagnosable "syndrome" at all, and current thinking on alienation has become quite nuanced. The most recent significant work on parental alienation comes from Drs. Joan Kelly and Janet Johnston, but since Dr. Gardner came up with his formulation of PAS first, that's where we'll start.

===Gardner's Parental Alienation Syndrome===

In 1997, Dr. Deirdre Rand published an article called "[http://www.fact.on.ca/Info/pas/rand11.htm The Spectrum of Parental Alienation Syndrome (Part II)]" in the ''American Journal of Forensic Psychology'', summarizing and updating Dr. Gardner's theory. In that article, Dr. Rand describes PAS as the child's formation of an "alignment" with one parent against the other. Think of alignment as meaning an alliance, or a sense of allegiance, in which a child comes to share the views and emotions of one parent over those of the other parent.

A study by J.R. Johnston and L.E. Campbell in 1988 found a measurable degree of alignment between children and one parent in 35 to 40% of the high-conflict cases they studied. In a 1993 article in ''Children of Divorce who Refuse Visitation'', Johnston reported finding strong alignments in 28 to 43% of 9- to 12-year-olds in high-conflict cases, with another 29% showing symptoms of a mild alignment.

According to Dr. Rand, children align differently depending on their ages:

*'''2- to 3-year-olds:''' Mostly show age-appropriate separation anxiety from their primary parent. This anxiety worsens when the primary parent is emotionally disturbed.
*'''3- to 6-year-olds:''' Alignments shift depending on which parent the children are with. Children in this age range have not yet learned to comprehend two different points of view, and cannot understand why one parent says one thing and the other parent says another.
*'''6- to 7-year-olds:''' Children in this age range are sensitive to hurting their parents, and often have conflicting loyalties between one parent and the other.
*'''7- to 9-year-olds:''' Children are able to understand each parent's point of view and understand how one perspective can conflict with another.
*'''9- to 12-year-olds:''' Children in this age range are the most vulnerable to PAS, as they are old enough to establish a strong alignment with one parent, and are old enough to try resolving conflicts of loyalty by "picking" one parent over the other.
*'''Teenagers:''' Children's alignments often continue into their mid-teens. Many teens are able to take a more mature and independent view of their parents' fight, but a significant number maintain their alignment and continue to reject one parent in favour of the other.

According to Drs. Rand and Gardner, children are about twice as likely to form alignments with their mothers than they are with their fathers, meaning that mothers are twice as likely to engage in alienating behaviour.

Dr. Rand says that PAS is a risk whenever parents must litigate a custody dispute. This risk increases when one or both parents make claims that attack the integrity, moral fitness, or character of the other parent. Such claims are typically hard to defend, and puts one parent on the defensive while giving the other parent a sense of moral superiority.

She notes that the statistical risk of PAS increases when: the parent perceived to be responsible for the breakdown of the relationship becomes involved in a new relationship shortly afterwards; and, a parent leaves the relationship precipitously. In my view, a third risk factor occurs when a parent's immediate family vigorously supports the parent's cause and encourages ill-will toward the other parent.

Drs. Rand and Gardner identify five types of behaviour that are characteristic of PAS:

*'''Rejecting:''' The parent rejects the child's need for a relationship with both parents. The child fears abandonment and rejection by the alienating parent if positive feelings are expressed about the other parent.
*'''Terrorizing:''' The alienating parent bullies the child into being terrified of the other parent, and punishes the child if the child expresses positive feelings about the other parent.
*'''Ignoring:''' The alienating parent withholds love and attention from the child.
*'''Isolating:''' The alienating parent prevents the child from participating in normal social activities with the other parent and that parent's friends and family.
*'''Corrupting:''' The alienating parent encourages the child to lie about and be aggressive toward the other parent. In very serious cases, the alienating parent will recruit the child to assist in deceits and manipulative behaviour intended to harm the other parent.

To this list, I would add two more categories:

*'''Distracting:''' The alienating parent sets up oppositional activities, goals or interests, some of which conflict with the other parent's time with the child. This could be, for example, enrolling the child in a sports team and placing a high value on the child's participation such that the child is upset to miss a game or practice when with the other parent, or telling the child that they won't make the team if the child doesn't attend all the games or practices including those scheduled during the other parent's time.
*'''Resigning:''' The alienating parent ceases to accept responsibility for the child's time with the other parent, and appears to leave it up to the child to decide whether to go or not go. This forces the child to make the choice to see the other parent, knowing that the alienating parent doesn't want the child to go at all, putting the child in a loyalty conflict.

===Reaction to Gardner's Parental Alienation Syndrome===

As you can imagine, lawyers loved the idea of Parental Alienation Syndrome, especially in the US where it became a rather trendy strategy in high-conflict cases. The American Bar Association's 1991 study found evidence suggesting PAS in the majority of 700 high-conflict custody cases they studied over the course of 12 years.

While lawyers might have loved the theory, it did raise lots of other problems. Men's rights groups liked it because the majority of parents perpetrating PAS were women, and Gardner's work appeared to give them the scientific backing that would turn the tide in courts they perceived to be biased in favour of women. Women's groups hated it as a sexist and an unscientific piece of claptrap. The courts didn't like it because implementing Dr. Gardner's recommendations would require them to place the child in the home of the "hated" parent, which was plainly the last thing the alienated child wanted.

The mental health community has been split on PAS for a number of reasons:

*There is no empirical support to give PAS status as a diagnosable syndrome.
*The theory focuses almost exclusively on the alienating parent as the cause of the child's rejection.
*PAS is overly simplistic and frequently misapplied.

===Contemporary perspectives on alienated children===

In their 2001 article "[http://jkseminars.com/pdf/AlienatedChildArt.pdf The Alienated Child]", published in ''Family Court Review'', Drs. Kelly and Johnston propose a reformulation of Dr. Gardner's theory that would focus primarily on the alienated child rather than on the alienating parent, on the principle that there are many different factors that can cause a child to be alienated from a parent apart from a malicious parent.

Drs. Kelly and Johnston view a child's relationships with their parents as falling on a spectrum that runs from the child wanting a positive relationship with both parents to the child being pathologically alienated from one parent:

::{| width="65%" class="wikitable"
|-
|style="width: 25%" align="center"|POSITIVE RELATIONSHIP with both parents||style="width: 40%" align="left"|Child prefers contact with both parents
|-
|align="center"|AFFINITY with one parent||align="left"|Child prefers contact with both parents
|-
|align="center"|ALLIANCE with one parent||align="left"|Child prefers one parent, and is ambivalent about the other
|-
|align="center"|ESTRANGED from one parent||align="left"|Child rejects one parent and may either be ambivalent about that parent or express a strong dislike for that parent
|-
|align="center"|ALIENATED from one parent||align="left"|Child rejects one parent and expresses a strong dislike for that parent
|}

Central to this reformulation of Dr. Gardner's theory are the ideas that:

*the child is the focus of investigation, not just one of the parents,
*children can become alienated from a parent for a good and justifiable reason, which the authors call ''estrangement'', and
*there are more potential causes of a child's alienation than only a malicious parent who is actively trying to interfere with the child's relationship with the other parent.

Drs. Kelly and Johnston do not reject Dr. Gardner's theory of the malicious parent, but they do broaden the scope of things that should be considered when evaluating for parental alienation.

===The impact on children===

The study by Johnston and Campbell described children with strong alignments as "forfeiting their childhood" because of the adult role they are forced to play when they become the alienating parent's nurturer, ally and support system.

Dr. Rand notes that:

<blockquote>"Divorce almost inevitably burdens children with greater responsibilities and makes them feel less cared for. Children of chronically troubled parents bear a greater burden. ... The needs of the troubled parent override the developmental needs of the child, with the result that the child becomes psychologically depleted and their own emotional and social progress is crippled."</blockquote>

While the process of alienation is underway, children are subject to a tremendous conflict of loyalties, which compounds the burden of nurturing an emotionally troubled parent, particularly when the alienation is intentional. When the parents were together, their children loved them both, and children naturally desire for this to continue even when their parents aren't together. Alienating conduct essentially asks children to pick sides, to chose one parent permanently and irrevocably over the other parent.

In G.F. Cartwright's article "[http://www.fact.on.ca/Info/pas/cartwr93.htm Expanding the Parameters of Parental Alienation Syndrome]," published in the ''American Journal of Family Therapy'' in 1993, a number of long-term psychological problems were found in children in alienation situations, including:

*depression, anxiety and/or stress,
*delayed emotional maturity,
*psychosomatic illnesses, and
*long-term feelings of guilt and loss.

In A. Lampel's article "[http://www.canadiancrc.com/Parental_Alienation_Syndrome_Canada/lampel96.pdf Children's Alignment with Parents in Highly Conflicted Custody Cases]," published in the ''Family and Conciliation Courts Review'' in 1996, these psychological problems were found to include:

*being angrier than non-alienated children,
*being less well-adjusted, and
*being less able to conceptualize complex situations.

Finally, when the process of alienation is complete, the child will have chosen sides. The child's relationship with the other parent may be permanently impaired. While many children afflicted by alienation will recover in their mid- to late-teens and reach out to the other parent, some never do, and their relationship with the other parent is permanently destroyed. To quote from the judge in a 2005 Ontario case, ''[http://canlii.ca/t/1jgqp Cooper v. Cooper]'', 2004 CanLII 47783 (ON SC):

<blockquote>"I find that [the mother's] sabotaging actions have been knowing, wilful and deliberate. As a result of [her] behaviour, the children have little or no relationship with the father who loves them, who has tried to be a good father, and who has been a good provider throughout their lives."</blockquote>

While evidence of alienation is necessary before a court can make a determination that it has occurred or make orders to ameliorate it, the impact of that behaviour or the allegation that it has occurred can give rise to situations where children become actively involved in the court action.

===Alienated parents===

Parents often find themselves feeling closer to their children following separation than they did during the relationship. Dr. Rand says that fathers in particular find a greater reward in parenting as a result of the loss, loneliness, and feelings of failure that can follow from the breakdown of the relationship. Accordingly, the impact of parental alienation is particularly traumatic to the targeted parent.

====Backing off====

D.S. Huntington, in an article published in 1986 in ''Divorce and Fatherhood'', noted that some parents can be driven off by a child's apparent rejection and refusal to visit. J.W. Jacobs, in a different article in the same book, says that targeted parents may also voluntarily withdraw from the child's life where, in their view, the child would suffer if the custody issues were pursued, or if the child would be exposed to additional conflict between the parents.

====Contributing to the problem====

Johnston has described ways that a targeted parent can inadvertently contribute to the child's alienation by displaying the sorts of behaviours that the alienating parent has taught the child to expect. These sorts of behaviours include: being cold and emotionally distant; being rigid and controlling; being insensitive to the child's needs; and, not being empathetic. These sorts of behaviours may reinforce the alienating parent's position and make the environment provided by the alienating parent compare favourably to that of the targeted parent.

====False claims of abuse====

In cases that are profoundly high conflict, false claims may be made, usually by the alienating parent, that the other parent has sexually or physically abused the child. Sometimes this is the fruit of the paranoia with which the alienating parent views the other parent, when a diaper rash turns into sexual assault and a bruise from falling off a jungle gym turns into proof of a beating. Sometimes, however, false claims are a part of the campaign to alienate the other parent when the alienation is intentional.

For the targeted parent, claims of this nature are devastating because they are so very difficult to disprove and they attack the moral fitness of the parent in a fundamental and humiliating way. While the claim is being defended, however, the parent may spends months without seeing their child. Even if the claim can be disproven, the parent may find that so much time has been lost that their relationship with the child is damaged. (Note that even unproven claims may result in arrest and possible criminal charges. Even where there are no criminal charges, a parent who has been arrested is invariably released following arrest on a promise not to contact the other parent or the child.)

Interestingly, K.L. Ross and G.J. Blush, in an article published in in 1990 in ''Issues in Child Abuse Allegations'', observed that falsely accused parents typically displayed passive behaviour in contrast to the accuser's excitable and hysterical behaviour. An American attorney Dr. Rand mentions says that the falsely accused parents she represents in parental alienation cases are typically emotionally and financially stable people, who were often the child's primary parent before separation.

==Dealing with estranged or alienated children==

When a child is becoming estranged or alienated, or when parental alienation is suspected, the situation must be dealt with as soon as possible. In most cases, these sorts of problems occur in the context of ongoing litigation, and the problem can usually be dealt with in the context of that litigation.

===Needs of the Child Assessments===

Section 211 of the ''[[Family Law Act]]'' allows a court to order that a Needs of the Child Assessment, formerly called a Custody and Access Report, be prepared. If the other parent will not agree to the preparation of a Needs of the Child Assessment, you must apply for an order that the report be prepared.

Proper Needs of the Child Assessments are prepared by a psychologist or a psychiatrist, or another mental health professional, who interviews each of the parents separately, and then interviews the child twice, once in the presence of each parent. The assessor may also give the children and the parents certain common psychological tests, such as personality evaluations and parenting inventories. Most often it's only the parents who are tested. The assessor will then prepare a report that sets out their observations and recommendations.

In making an order that a Needs of the Child Assessment be prepared, the court can simply say "a report will be prepared" or it can be more detailed and discuss which person will prepare the report, when it will be finished, and who will pay for it. Most importantly, the order can identify particular issues that the assessor is to address in the report. Where a report is sought because of suspected parental alienation, the order should expressly state that the assessor is to see whether alienation is or is not happening.

===Fixing the problem===

Frankly, it may be impossible to fix a child's alienation from one of their parents even when alienation has been identified by a psychiatrist. In a 1988 article by N.R. Palmer published in the ''American Journal of Family Therapy'', Palmer quotes a Florida judge who dealt with an alienation case:

<blockquote>"The Court has no doubt that the cause of the blind, brainwashed, bigoted belligerence of the children toward the father grew from the soil nurtured, watered and tilled by the mother. The Court is thoroughly convinced that the mother breached every duty she owed as the custodial parent to the noncustodial parent of instilling love, respect and feeling in the children for their father. Worse, she slowly dripped poison into the minds of these children, maybe even beyond the power of this Court to find the antidote."</blockquote>

Dr. Gardner's solution was to remove the child from the care of the alienating parent. This is, in most cases, a drastic solution which forces the child to live full-time with the parent they have been taught to dislike and distrust. It may still be appropriate in the right circumstances. This is what the Supreme Court did in the 2009 case of ''[http://canlii.ca/t/22pjw A.A. v. S.N.A.]'', 2009 BCSC 303 when it found that the mother had "continued to undermine the relationship between [the child] and her father" and "acted in ways that are detrimental to [the child's] psychological healing." The court ordered that the child have no contact with her mother at all for one year. This kind of solution remains the exception rather than the rule.

In most cases, however, the best that can be done to cure the problem is to obtain an order requiring that the child, the alienated parent, or both the child and the parent see a family counsellor skilled in dealing with the psychological effects of separation. The court can specify who the counsellor will be, how frequent the sessions will be, and who will pay for them. There is no guarantee that counselling will fix the problem since the source of the problem lies in the conduct of the alienating parent, but counselling is a less drastic step and will be easier to obtain than an order changing the children's home.

In a small number of cases, it may prove impossible to ameliorate an alienated child's views about the targeted parent. These cases are tragic and a legal solution may not be available. When the alienation becomes deeply entrenched, the issue about which parent bears the blame for the children's views is irrelevant. You can lay blame, but that won't change the fact of how the children feel. In situations like this, the targeted parent may have no choice but to wait until the children become mature and independent enough to seek out the parent and talk about their childhood.

The Fall 2008 edition of ''AFCC News'', an organ of the Association of Family and Conciliation Courts, discusses a ground-breaking program for alienated and estranged children called Breaking Barriers Camp. The program involved all family members in intensive therapy in an overnight camp setting, at a facility called Common Ground Center in Starksboro, Vermont, with enormous amounts of support available to encourage reunification between parents and their children. The program, by the article's account, was a stunning success, with four of five families leaving with mutually agreed plans to continue working on the re-established parent-child relationship.

==Resources on Parental Alienation Syndrome==

The following lists of resources are not, of course, encyclopaedic. There are doubtless many valuable studies, articles and websites which I have overlooked; doing your own research is always recommended.

===Academic materials===

The January 2010 edition of [http://onlinelibrary.wiley.com/doi/10.1111/fcre.2010.48.issue-1/issuetoc ''Family Court Review''], published by the Association of Family and Conciliation Courts, is entirely devoted to the issue of alienated and estranged children. If you can get your hands on a copy, you should. It offers an up-to-date look at current court practices and the latest literature on the subject and was edited by two prominent Canadians, Professor Nick Bala, a law professor at Queen's University, and Dr. Barbara Jo Fidler, a psychologist and mediator based in Toronto.

The following articles were suggested as recommended readings on child alienation and estrangement by Dr. Joan Kelly at a June 2005 seminar in Vancouver.

*Buchanan, C., Maccoby, E., & Dombusch, S. (1991) "Caught between parents: Adolescents’ experience in divorced homes." ''Child Development''
*Buehler, C., Krishnakumar, A., Stone, G., Anthony, C., Pemberton, S., Gerard, J., & Barber, B.K. (1998) "Interparental conflict styles and youth problem behaviors: A two-sample replication study." ''Journal of Marriage & Family''
*Clawar, S.S. & Rivlin, B.V. (1991) Children held hostage: Dealing with programmed and brainwashed children
*Cummings, E. & Davies, P. (1994) Children and marital conflict
*Dunne, J. & Hedrick, M. (1994) "The parental alienation syndrome: An analysis of sixteen selected cases." ''Journal of Divorce and Remarriage''
*Emery, R. E. (2004) "Parental alienation syndrome: Proponents bear the burden of proof." ''Family Court Review''
*Faller, K.C. (1998) "The parental alienation syndrome, What is it and what data support it?" ''Child Maltreatment''
*Freeman, R., Abel, D., Cowper-Smith, M., & Stein, L. (2004) "Reconnecting children with absent parents: A model for intervention" ''Family Court Review''
*Gardner, R.A. (1998) The parental alienation syndrome
*Johnston, J. R. (2003) "Parental alignments and rejection: An empirical study of alienation in children of divorce." ''Journal of the American Academy of Psychiatry and Law''
*Johnston, J.R. (1993) "Children of divorce who refuse visitation," in C. Depner & J.H. Bray (Eds.), ''Non-residential parenting: New vistas in family living''
*Johnston, J. R. & Kelly, J.B. (2004) "Rejoinder to Gardner’s 'Commentary on Kelly and Johnston’s The alienated child: A reformulation of parental alienation syndrome'." ''Family Court Review''
*Johnston, J. R. & Kelly, J. B. (2004) "Commentary on Walker, Brantley & Rigsbee’s 'A critical analysis of parental alienation and its admissibility in the family court'." ''Journal of Child Custody''
*Johnston, J.R. & Roseby, V. (1997) In the name of the child: A developmental approach to understanding and helping children of high-conflict and violent families.
*Johnston, J.R., Walters, M.G., & Friedlander, S. (2001) "Therapeutic work with alienated children and their families." ''Family Courts Review''
*Kelly, J. B. (2000) "Children’s adjustment in conflicted marriage and divorce: A decade review of research." ''Journal of the American Academy of Child Adolescent Psychiatry''
*Kelly, J. (2003) "Parents with enduring child disputes: Multiple pathways to enduring disputes." ''Journal of Family Studies''
*Kelly, J. (2003) "Parents with enduring child disputes: Focused interventions with parents in enduring disputes." ''Journal of Family Studies''
*Kelly, J. (2002) "Psychological and legal interventions for parents and children in custody and access disputes: Current research and practice." ''Virginia Journal of Social Policy and Law''
*Kelly, J. & Emery, R. (2003) "Children’s adjustment following divorce: Risk and resilience perspectives." ''Family Relations''
*Kelly, J.B. & Johnston, J.R. (2001) "The alienated child: A reformulation of parental alienation syndrome." ''Family Courts Review''
*Kline, M., Johnston, J., & Tschann, J. (1990) "The long shadow of marital conflict: a model of children’s postdivorce adjustment." ''Journal of Marriage & Family''
*Lampel, A.K. (1996) "Children’s alignments with parents in highly conflicted custody cases." ''Family & Conciliation Courts Review''
*Lee, S. M. & Olesen, N. W. (2001) "Assessing for alienation in child custody and access evaluations." ''Family Courts Review''
*Lund, M. (1995) "A therapist’s view of parental alienation syndrome." ''Family & Conciliation Courts Review''
*Rand, D.C. (1997) "The spectrum of parent alienation: Part 1." ''American Journal of Forensic Psychology''
*Rand, D.C. (1997) "The spectrum of parent alienation: Part 2." ''American Journal of Forensic Psychology''
*Sullivan, M. J. & Kelly, J.B. (2001) "Legal and psychological management of cases with an alienated child." ''Family Courts Review''
*Turkat, I.D. (1994) "Child visitation interference in divorce." ''Clinical Psychology Review''
*Waldron, K.H. & Joanes, D.E. (1996) "Understanding and collaboratively treating parental alienation syndrome." ''American Journal of Family Law''
*Wallerstein, J.S. & Kelly, J.B. (1976) "The effects of parental divorce: Experiences of the child in later latency." ''American Journal of Orthopsychiatry''
*Wallerstein, J.S.. & Kelly, K.B. (1980) Surviving the breakup: How children and parents cope with divorce.
*Warshak, R. A. (2003) "Bring sense to parental alienation: A look at the disputes and the evidence." ''Family Law Quarterly''
*Warshak, R. A. (2003) "Payoffs and pitfalls of listening to children." ''Family Relations''
*Wood, C. (1994) "The parental alienation syndrome: A dangerous aura of reliability." ''Loyola of Los Angeles Law Review
''
===Online information===

The web is full of resources about parental alienation. Much of the information available online is, however, of limited utility. Look about the web and educate yourself about alienation, but be cautious about the sources of what you're reading. Stick to information published by academics, lawyers, psychiatrists and psychologists, and avoid anonymous websites, websites sponsored by special interest groups that are likely to be biased, sensationalist websites, and websites that don't give a source for their data or their conclusions. The most reliable sort of online information is that which has been reproduced from a professional journal.

A good starting point for online research is the website of the [http://www.spig.clara.net/ Shared Parenting Information Group], a UK organization, which has a good discussion of the subject and plenty of useful links.

A final note of caution. Many of the groups you'll find online that offer information on alienation and PAS, such as Fathers Are Capable Too, seem to regard PAS as a men's rights or fathers' rights issue. In part this is because the majority of alienating parents are mothers. However, some of these sites go too far and identify feminism, or rather their prejudice against feminism, with the small number of women who engage in alienating behaviour. Fathers also engage in alienating behaviour. Take care in your sources of information and make sure you're reading between the lines.

==Resources and links==

===Legislation===

* ''[[Divorce Act]]''
* ''[[Family Law Act]]''

===Links===

*"[http://jkseminars.com/pdf/AlienatedChildArt.pdf The Alienated Child: A Reformulation of Parental Alienation Syndrome]"
*"[http://www.canadiancrc.com/Parental_Alienation_Syndrome_Canada/lampel96.pdf Children's Alignment with Parents in Highly Conflicted Custody Cases]"
* [http://onlinelibrary.wiley.com/doi/10.1111/fcre.2010.48.issue-1/issuetoc Family Court Review]
* [http://www.spig.clara.net/ Shared Parenting Information Group] (UK)

{{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]], April 16, 2019}}

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[[Category:JP Boyd on Family Law]]

Changing Family Law Orders and Agreements Involving Children

2019-04-16T18:59:55Z

Samantha Rapoport:

{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
|ChapterEditors = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change a final order]
}}There really is no such thing as an absolutely final order or agreement involving children. All orders and agreements involving children may be changed, but, in general, something new must have happened since the original order or agreement was made that affects the best interests of the children. In family law, ''change in circumstances'' is the term used to describe when something new has happened that justifies a change to the order or agreement.

This section talks about changing orders for custody and access under the ''[[Divorce Act]]'' and about changing orders and agreements about parenting arrangements and contact under the ''[[Family Law Act]]''. It also discusses relocation, a special problem that comes up when a guardian wants to move, usually with the children, to a different town, province or country.

==Introduction==

Changing an order is called ''varying'' an order. An order can only be varied by a new order. Changing an agreement is called ''amending'' an agreement. An agreement can be amended by making a new agreement, usually called an ''addendum agreement'' or something to the same effect. It can also be changed by the court setting the agreement aside and making an order in its place.

Parents usually want to vary an order or agreement because something has changed. The court will not vary an order or agreement lightly. The person who wants to change an order must establish that there has been a "change in circumstances" since the order was made.

The process for applying to vary an order will depend on whether the original order was made under the federal ''Divorce Act'' or the provincial ''Family Law Act''. If it was made under the ''Family Law Act'', it will depend on whether the order was made by the Supreme Court or the Provincial Court. Almost the same general considerations that apply to varying orders apply to setting aside agreements.

===The ''Divorce Act''===

Under s. 5 of the ''[[Divorce Act]]'', the Supreme Court has the jurisdiction to vary a ''Divorce Act'' order for custody or access made anywhere in Canada as long as the person making the application, (the applicant), ordinarily lives in British Columbia when the application is made or if both spouses have agreed to have the application heard here. However, if the child has deeper roots and greater social ties in the other province or territory, the court is likely to transfer the matter to be heard in the other province or territory.

Section 17 gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access. Section 17 also sets out the test for the variation of custody and access orders, and the principle that it is in a child's best interests to have maximum contact with each parent. Section 17 says this:

<blockquote><tt>(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote>
<blockquote><tt>(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.</tt></blockquote>

It is up to the applicant to show that there has been a change in the "condition, means, needs or other circumstances of the child" since the last order was made or the court won't change the order.

===The ''Family Law Act''===

The rules in the ''[[Family Law Act]]'' about varying orders and setting aside agreements are different from each other, and also change depending on the subject of the part of the order or agreement that is sought to be varied or set aside.

====Varying orders====

Both the Supreme Court and the Provincial Court have the jurisdiction to vary orders and set aside agreements for guardianship, parenting arrangements, and contact. As a rule of thumb, applications to vary orders can only be brought to the court that made the original order: an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''Family Law Act'' sets out the test to vary orders about parenting arrangements:

<blockquote><tt>On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.</tt></blockquote>

The test to vary orders about contact is at s. 60, and says exactly the same thing, just with the word "contact" in place of the phrase "parenting arrangements".

The general test under the ''[[Family Law Act]]'' to vary orders is at s. 215(1). It applies when there isn't a specific test required to vary a particular order, such as the way ss. 47 and 60 set out the required test to vary orders about parenting arrangements and contact. Since there's no specific test to vary orders for guardianship, the general test set out in s. 251(1) will apply:

<blockquote><tt>Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

Whenever the court is asked to make an order about guardianship, parenting arrangements, and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).

In [http://canlii.ca/t/gnftl ''Williamson v. Williamson''], 2016 BCCA 87 the Court of Appeal confirmed the test to apply in an application to vary parenting time arrangements under the ''Family Law Act'' is the same test that applies to the variation of custody arrangements under the ''Divorce Act''. Under this test, a ''material change in circumstances'' is:

# a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child,
# which materially affects the child, and
# which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

====Setting aside agreements====

Under the ''[[Family Law Act]]'', the court cannot vary or amend a valid agreement. When the court is convinced that an agreement must change, the court will set aside the parts of the agreement that are causing the problem and make an order in place of the parts of the agreement that were set aside. Section 214 of the Act says this:

<blockquote><tt>(1) If an order is made to set aside part of an agreement, the part is deemed to be severed from the remainder of the agreement.</tt></blockquote>
<blockquote><tt>(2) A court may incorporate into an order all or part of a written agreement respecting a family law dispute made by the parties to the proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

The legal test that the court must apply to set aside part of an agreement depends on the nature of the change requested. Where the change sought relates to parenting arrangements for a child, the court will consider whether there has been a change in circumstances and the court will want to ensure that the agreement is in the best interests of the child.

==Changing orders about custody==

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, sets out the factors a court must consider when hearing an application to vary orders for custody or access made under the ''[[Divorce Act]]'':

*The parent applying for a change in the custody or access order must first prove that there has been a material change in the circumstances affecting the child.
*If this threshold is met, the judge on the application must make a fresh assessment about what is in the best interests of the child, considering all of the relevant facts relating to the child's needs and the ability of the each parent to satisfy the child's needs.
*This assessment is based on the findings of the judge who made the previous order, as well as the new circumstances.
*The assessment does not begin with a legal presumption in favour of the parent with whom the child mostly lives, although that parent's views are entitled to great respect.
*The focus is on the best interests of the child, not the interests, rights and entitlements of the parents.

In other words, the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision, as if the case was being heard for the first time. Most importantly, this means that there is no automatic presumption in favour of the status quo.

Cases where an order for custody has been varied include circumstances such as where:

*The change is in the best interests of the children in the long run.
*The parent with the children's primary residence has attempted to alienate the children from the other parent.
*The parent with the children's primary residence has repeatedly frustrated the other parent's access to the children.
*The child has been apprehended by child protection workers.
*The child has been abused by the parent with the children's primary residence.
*A mature child has expressed a wish to live with the other parent.

The courts are unlikely to change custody where the children are happy in an existing stable and secure setting.

==Changing orders and agreements about guardianship and parental responsibilities==

The ''[[Family Law Act]]'' has rules about who is presumed to be a guardian. When someone is presumed to be a guardian, that person ''is'' a guardian, without the need for an order. The only people who must have an order making them a guardian are the people who don't fit into those presumptions, like aunts and uncles, grandparents, and other people who have established a caring relationship with a child.

People who are guardians, whether by a court order or as a result of the presumptions of guardianship, manage the care and raising of child by exercising ''parental responsibilities''. Under s. 40(2) of the act, parental responsibilities are presumed to be shared by all guardians until an order or an agreement says otherwise, and s. 40(3) says:

<blockquote><tt>Parental responsibilities may be allocated under an agreement or order such that they may be exercised by</tt></blockquote>
<blockquote><blockquote><tt>(a) one or more guardians only, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) each guardian acting separately or all guardians acting together.</tt></blockquote></blockquote>

Orders about guardianship and parental responsibilities can be varied by another order. Agreements about parental responsibilities can be changed if the parties decide to amend the agreement. If they can't agree, the court may set aside the agreement and replace it with an order about parental responsibilities.

===Guardianship===

Under s. 51(1) of the ''[[Family Law Act]]'', the court may make an order appointing someone as a guardian of a child or make an order ''terminating'' someone's guardianship of a child. This section doesn't say what the court should consider when terminating someone's guardianship. However, s.37 (1) says that:

<blockquote><tt>In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.</tt></blockquote>

Section 215 provides a general test to change orders that applies when no specific test is provided:

<blockquote><tt>... a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

In other words, to vary an order appointing a person as guardian, the applicant will have to show that there has been a change in circumstances and explain why it is in the best interests of the child that the person be removed as guardian.

===Parental responsibilities===

The ''[[Family Law Act]]'' provides a test to vary orders about parental responsibilities and a test to set aside agreements about parental responsibilities. Section 44(4) talks about agreements:

<blockquote><tt>... the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

Section 47 talks about orders:

<blockquote><tt>... a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.</tt></blockquote>

Under both tests, the court must also consider why the proposed result would or wouldn't be in the best interests of the child.

==Changing orders and agreements about access, parenting time and contact==

Orders and agreements about parenting schedules are most commonly varied because:
*one of the parties has been frustrating the schedule,
*a party is constantly late or cancels visits frequently,
*the child is older and is more able to spend more time with the visiting parent,
*a party has moved and the old parenting schedule is no longer convenient or,
*the child wishes to see the visiting party more or less often.

The case of ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'' also applies to changing access orders under the ''Divorce Act'': the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the application, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision about access as if the matter was being heard for the first time, with no presumption in favour of how things used to be.

Under ss. 47 and 60 of the ''[[Family Law Act]]'', the court may vary an order for parenting time or contact if it is satisfied that:

<blockquote><tt>... since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.</tt></blockquote>

Sections 44(4) and 58(4) allow the court to set aside an agreement about parenting time or contact if it is:

<blockquote><tt>...satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

When considering applications like these, both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court to consider the best interests of the child rather than the needs or interests of the parties.

===Vague parenting schedules===

Problems often crop up when an order or agreement says only that a parent will have liberal and generous time with a child, or sets a schedule that is too vague. In situations like this, it's too easy for a schedule not to work. What is liberal and generous time anyway? Who decides what is liberal and what is generous? Say an order or agreement says this:

<blockquote>"Sally will have parenting time from Friday to Sunday."</blockquote>

When exactly does Sally's access start? When does it end? Who is supposed to pick the child up and drop her off? Is the Sunday the Sunday immediately following the Friday or the Sunday a week later? A better order or agreement would say:

<blockquote>"Sally will have parenting time from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. Sally will be responsible for picking the child up on Fridays and Bob will be responsible for picking the child up on Sundays."</blockquote>

Even better would be an order or agreement that says:

<blockquote>"Sally will have the child from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. If the Friday is a statutory holiday or a school professional development date, Sally will have the child from Thursday at 4:00pm. If the Monday following the Sunday is a statutory holiday or a school professional development day, Sally will have the child until Monday at 6:00pm.</blockquote>
<blockquote>"Sally will be responsible for picking the child up at the beginning of her access to the child and Bob will be responsible for picking the child up at the conclusion of Sally's access to the child.</blockquote>
<blockquote>"In the event that Sally is unable to care for the child during a scheduled access visit, Sally will give at least two days' notice to Bob.</blockquote>
<blockquote>"On Fathers' Day, Sally's parenting time with the child will be suspended from 10:00am to 2:00pm, during which time Bob will have the child.</blockquote>
<blockquote>"Sally's parenting time with the child will be suspended during the summer, winter and spring school holidays, during which periods the following holiday access schedule will prevail..."</blockquote>

Where there has been a history of difficulties, the court will generally be prepared to provide specific terms setting out the parenting arrangements.

===Reducing time with a child===

Cases where the parenting schedule in an order or agreement has been varied to reduce a person's time with a child include in circumstances where:

*a party has moved far enough away as to make the original access schedule impossible to comply with,
*a mature child has expressed a wish not to see the person,
*a party has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*the parties' relationship has worsened to the point that they can no longer cooperate,
*a party has attempted to interfere with the child's relationship with the other party, or
*the party's time with the child is proving harmful to the child's mental or physical health and welfare.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report or an assessment of the needs of the child, the views of the child, and the ability of each of the child's caregivers to meet the child's needs. The types of assessments that are available to parties to a family law case in British Columbia are discussed in more detail at the start of the [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] chapter, under the heading [[Children in Family Law Matters#Reports and assessments|Reports and Assessments]].

===Increasing time with a child===

Of course, parenting schedules can also be changed to increase the amount of time a person has with a child. Circumstances where this has happened include where:

*a party was interfering with the child's relationship with the other party, so that more time was required to restore the relationship,
*a party was interfering with and unreasonably limiting the time provided to the other person in an order or agreement,
*a child is older and able to spend more time away from a parent,
*a child over the age of eleven or twelve or so has expressed a wish to see more of the other person.

These are just a few of the circumstances in which a person's time with the child can be increased from the amount given in an order or agreement. As long as there has been a change in circumstances since the order or agreement was made and the increased time is in the children's best interests, access arrangements should be adjusted.

==Relocating with or without a child==

Mobility is a fact of life in Canada. A parent who wants to move must have the other parent's consent or a court order. Generally, the reasons for moving include:

*there is an employment opportunity,
*the parent is in a new relationship with someone from out of town,
*the parent wants to be closer to family,
*there is a unique educational opportunity for either the parent or the children,
*there is a unique medical or therapeutic opportunity for either the parent or the children.

Normally, the other parent doesn't want the children to move since a move could hamper that parent's ability to see the children as frequently and could harm the child's relationship with that parent. This is especially true when a parent seeks to move to another province or another country. Even within British Columbia, a relatively short move from Richmond to Chilliwack, for example, can impair a parent's schedule and relationship with their child.

These problems, which used to be called ''mobility issues'', are handled under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' in different ways.

===The ''Divorce Act'' and ''Gordon v. Goertz''===

Relocation under the ''[[Divorce Act]]'' is about applying to vary an order for custody or access. Inevitably, a move of even only a few hours away can make it impossible for a spouse to have access to a child. In order for the spouse who is moving to avoid being in breach of an order for custody or access, the spouse will need to apply to the court for an order adjusting the arrangements for custody and access to allow the move. The most important case on this issue is ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', discussed above. The reasoning from that case is roughly this:

*The parent applying for a change in the custody or access order must first prove that there has been a material change in the circumstances affecting the child.
*If this threshold is met, the judge on the application must make a fresh assessment about what is in the best interests of the child, considering all of the relevant facts relating to the child's needs and the ability of the each parent to satisfy the child's needs.
*This assessment is based on the findings of the judge who made the previous order and the new circumstances.
*The assessment does not begin with a legal presumption in favour of the parent with whom the child mostly lives, although that parent's views are entitled to great respect.
*The focus is on the best interests of the child, not the interests, rights and entitlements of the parents.

It is always very difficult to say whether the court will allow a parent to move with the children or not. The case law following ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'' is quite contradictory and the best that can usually be said, apart from pointing out some general principles, is that a parent with the children's primary residence has almost a 60% chance of being allowed to do so. In 2011, Professor Rollie Thompson of the law school at Dalhousie University gave a presentation to local lawyers updating the case law on mobility issues in BC, and what he learned was this:

*The parent with primary care is able to move about 50% of the time in Canadian cases these days, down from 60%. Moves are permitted about 57% of the time in BC.
*Moves are allowed about half the time at trial, but are allowed about three-quarters of the time when the application is brought as a variation of a trial decision.
*Moves were refused in eight of nine cases where the parents had shared custody of the children, but were allowed in 17 of 18 cases (after counting appeals) where the parent wishing to move was primarily responsible for the care of the children. Where there wasn't a parent who was clearly responsible, the move was allowed in 54% of cases.
*Moves were allowed three-quarters of the time when the children were aged 0 to five, declining to about half the time for children aged six and older.
*Appeals from decisions allowing a move rarely succeed. Appeals from decisions refusing permission to move succeeded 66% of the time.

The tough part about all of this is that it's all fine and dandy to know what happens to people on a ''statistical'' basis, but statistics don't tell you anything about what is going to happen if ''you'' want to move! However, some of the circumstances that courts have found to favour or reject a proposed move are these:
{| class = wikitable
! Factors in Favour
! Factors Against
|-
|
*The spouse seeking the move has better job prospects or a guaranteed job at the proposed destination.
*The spouse has a support network of family and friends at the new home.
*There is some benefit at the new home not available at the old home, like better schools or medical programs.
*The spouses have resources available to them that will allow the other spouse to visit the children frequently, like a lot of money or being an employee of an airline.
*The children aren't particularly close to or have no relationship with the spouse who will be staying behind.
|
*The children have lived in their present setting for a significant amount of time and have established roots in their community.
*The move will damage or terminate the other spouse's relationship with the children.
*The move is motivated by a wish to alienate the children from the other spouse.
*The parent seeking the move has no particular ties to the destination, or the move is proposed solely for that spouse to be in a new relationship.
*There is no way to balance the effect of the move with more extended time with the other spouse, such as extended summer access, or access over the whole of the winter holiday.
|}
It is almost impossible to predict the result of an application to move under ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]''. Because relocation issues are among the most hotly argued and difficult issues there are in family law, the assistance of a lawyer is highly recommended.

===The rules under the ''Family Law Act''===

The situation is much different under the ''[[Family Law Act]]''. One of the most important changes this law has introduced are new legal obligations for guardians who are planning on relocating. There are different processes depending on whether there is a court order or agreement in place with respect to parenting arrangements.

Where there is no court order or agreement with respect to parenting arrangements in place, section 46 of the ''Family Law Act'' applies. Here is how that process works:

Before there is a change to a child’s residence that can reasonably be expected to have a significant impact on that child’s relationship with another guardian, the guardian seeking the change in residence must bring an application for an order respecting parenting time, pursuant to s. 45 of the ''Family Law Act''.

Section 46(2) of the ''Family Law Act'' sets out the test to determine whether there can be changes to a child’s residence: To determine the parenting arrangements that would be in the best interests of the child in the circumstances set out in subsection (1) of this section, the court

(a) must consider, in addition to the factors set out in section 37 (2) [best interests of child], the reasons for the change in the location of the child's residence, and

(b) must not consider whether the guardian who is planning to move would do so without the child.

Where the parties have an existing order or agreement with respect to parenting arrangements, the ''Family Law Act'' sets out two new tests to determine whether a guardian will be permitted to relocate if another guardian objects.

Here's how that process works:.

First, under s. 66, a guardian who plans a move, with or without the child, that will have a significant impact on the child's relationship with a guardian or other people with a significant role in the child's life must give written notice of the proposed move at least 60 days before the move, to all other ''guardians'' and ''persons with contact'' with the child. (The guardian who is moving can apply to court for an exception to this requirement.) The notice must state the place the guardian plans on moving to and the date of the move. This requirement applies whether a guardian is planning on moving with a child or by themselves.

Second, under s. 68, a guardian who objects to the proposed move must file an application in court to stop the move within 30 days of getting written notice of the move. The parties are required to try to resolve any disagreement about the move on their own, but this doesn't prevent a guardian from applying to stop the move. Only guardians can object; people with contact cannot. However, people with contact can make an application under section 59 of the ''Family Law Act'' or section 60 of the ''Family Law Act'' to seek an order or to change an existing order for contact, for the purpose of maintaining the relationship between the child and a person having contact with the child if the relocation occurs.

Third, if the parties can't resolve their differences about the move, then either guardian can apply to court for orders allowing or preventing the proposed move. There are different tests that the court will apply depending on whether the guardians have "substantially equal parenting time". The ''moving guardian'' must prove, under s. 69(4) that:

#they have proposed to move ''in good faith,'' and
#they have proposed ''reasonable and workable'' arrangements to preserve the child's relationships with other guardians and persons with significant roles in the child's life.

If the guardian who is moving can do this, the move is presumed to be in the child's best interests unless the guardian who is objecting to the move can convince the court otherwise.

The test is a bit different if the moving guardian and the objecting guardian share the child's time equally or almost equally. In that case, the moving guardian must prove, under s. 69(5) that:

#they have proposed to move "in good faith,"
#they have proposed "reasonable and workable" arrangements to preserve the child's relationships with other guardians and persons with significant roles in the child's life, and
#the move is in the child's best interests.

The meaning of ''good faith'' is discussed at s. 69(6):

<blockquote><tt>For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the reasons for the proposed relocation;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) whether notice was given under section 66;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) any restrictions on relocation contained in a written agreement or an order.</tt></blockquote></blockquote>

If the move is allowed, the objecting guardian may ask the court to vary the old arrangements for parenting time and, under s. 70(2), the court is required to "seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order."

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

* [http://www.familylaw.lss.bc.ca/guides/change/cantAgree/index.php Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.familylaw.lss.bc.ca/guides/change/cantAgree/index.php Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]

{{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]],April 16, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Changing Family Law Orders and Agreements Involving Children

2019-04-16T18:57:50Z

Samantha Rapoport: Comprehensive review

{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
|ChapterEditors = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change a final order]
}}There really is no such thing as an absolutely final order or agreement involving children. All orders and agreements involving children may be changed, but, in general, something new must have happened since the original order or agreement was made that affects the best interests of the children. In family law, ''change in circumstances'' is the term used to describe when something new has happened that justifies a change to the order or agreement.

This section talks about changing orders for custody and access under the ''[[Divorce Act]]'' and about changing orders and agreements about parenting arrangements and contact under the ''[[Family Law Act]]''. It also discusses relocation, a special problem that comes up when a guardian wants to move, usually with the children, to a different town, province or country.

==Introduction==

Changing an order is called ''varying'' an order. An order can only be varied by a new order. Changing an agreement is called ''amending'' an agreement. An agreement can be amended by making a new agreement, usually called an ''addendum agreement'' or something to the same effect. It can also be changed by the court setting the agreement aside and making an order in its place.

Parents usually want to vary an order or agreement because something has changed. The court will not vary an order or agreement lightly. The person who wants to change an order must establish that there has been a "change in circumstances" since the order was made.

The process for applying to vary an order will depend on whether the original order was made under the federal ''Divorce Act'' or the provincial ''Family Law Act''. If it was made under the ''Family Law Act'', it will depend on whether the order was made by the Supreme Court or the Provincial Court. Almost the same general considerations that apply to varying orders apply to setting aside agreements.

===The ''Divorce Act''===

Under s. 5 of the ''[[Divorce Act]]'', the Supreme Court has the jurisdiction to vary a ''Divorce Act'' order for custody or access made anywhere in Canada as long as the person making the application, (the applicant), ordinarily lives in British Columbia when the application is made or if both spouses have agreed to have the application heard here. However, if the child has deeper roots and greater social ties in the other province or territory, the court is likely to transfer the matter to be heard in the other province or territory.

Section 17 gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access. Section 17 also sets out the test for the variation of custody and access orders, and the principle that it is in a child's best interests to have maximum contact with each parent. Section 17 says this:

<blockquote><tt>(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote>
<blockquote><tt>(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.</tt></blockquote>

It is up to the applicant to show that there has been a change in the "condition, means, needs or other circumstances of the child" since the last order was made or the court won't change the order.

===The ''Family Law Act''===

The rules in the ''[[Family Law Act]]'' about varying orders and setting aside agreements are different from each other, and also change depending on the subject of the part of the order or agreement that is sought to be varied or set aside.

====Varying orders====

Both the Supreme Court and the Provincial Court have the jurisdiction to vary orders and set aside agreements for guardianship, parenting arrangements, and contact. As a rule of thumb, applications to vary orders can only be brought to the court that made the original order: an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''Family Law Act'' sets out the test to vary orders about parenting arrangements:

<blockquote><tt>On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.</tt></blockquote>

The test to vary orders about contact is at s. 60, and says exactly the same thing, just with the word "contact" in place of the phrase "parenting arrangements".

The general test under the ''[[Family Law Act]]'' to vary orders is at s. 215(1). It applies when there isn't a specific test required to vary a particular order, such as the way ss. 47 and 60 set out the required test to vary orders about parenting arrangements and contact. Since there's no specific test to vary orders for guardianship, the general test set out in s. 251(1) will apply:

<blockquote><tt>Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

Whenever the court is asked to make an order about guardianship, parenting arrangements, and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).

In [http://canlii.ca/t/gnftl ''Williamson v. Williamson''], 2016 BCCA 87 the Court of Appeal confirmed the test to apply in an application to vary parenting time arrangements under the ''Family Law Act'' is the same test that applies to the variation of custody arrangements under the ''Divorce Act''. Under this test, a ''material change in circumstances'' is:

# a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child,
# which materially affects the child, and
# which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

====Setting aside agreements====

Under the ''[[Family Law Act]]'', the court cannot vary or amend a valid agreement. When the court is convinced that an agreement must change, the court will set aside the parts of the agreement that are causing the problem and make an order in place of the parts of the agreement that were set aside. Section 214 of the Act says this:

<blockquote><tt>(1) If an order is made to set aside part of an agreement, the part is deemed to be severed from the remainder of the agreement.</tt></blockquote>
<blockquote><tt>(2) A court may incorporate into an order all or part of a written agreement respecting a family law dispute made by the parties to the proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

The legal test that the court must apply to set aside part of an agreement depends on the nature of the change requested. Where the change sought relates to parenting arrangements for a child, the court will consider whether there has been a change in circumstances and the court will want to ensure that the agreement is in the best interests of the child.

==Changing orders about custody==

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, sets out the factors a court must consider when hearing an application to vary orders for custody or access made under the ''[[Divorce Act]]'':

*The parent applying for a change in the custody or access order must first prove that there has been a material change in the circumstances affecting the child.
*If this threshold is met, the judge on the application must make a fresh assessment about what is in the best interests of the child, considering all of the relevant facts relating to the child's needs and the ability of the each parent to satisfy the child's needs.
*This assessment is based on the findings of the judge who made the previous order, as well as the new circumstances.
*The assessment does not begin with a legal presumption in favour of the parent with whom the child mostly lives, although that parent's views are entitled to great respect.
*The focus is on the best interests of the child, not the interests, rights and entitlements of the parents.

In other words, the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision, as if the case was being heard for the first time. Most importantly, this means that there is no automatic presumption in favour of the status quo.

Cases where an order for custody has been varied include circumstances such as where:

*The change is in the best interests of the children in the long run.
*The parent with the children's primary residence has attempted to alienate the children from the other parent.
*The parent with the children's primary residence has repeatedly frustrated the other parent's access to the children.
*The child has been apprehended by child protection workers.
*The child has been abused by the parent with the children's primary residence.
*A mature child has expressed a wish to live with the other parent.

The courts are unlikely to change custody where the children are happy in an existing stable and secure setting.

==Changing orders and agreements about guardianship and parental responsibilities==

The ''[[Family Law Act]]'' has rules about who is presumed to be a guardian. When someone is presumed to be a guardian, that person ''is'' a guardian, without the need for an order. The only people who must have an order making them a guardian are the people who don't fit into those presumptions, like aunts and uncles, grandparents, and other people who have established a caring relationship with a child.

People who are guardians, whether by a court order or as a result of the presumptions of guardianship, manage the care and raising of child by exercising ''parental responsibilities''. Under s. 40(2) of the act, parental responsibilities are presumed to be shared by all guardians until an order or an agreement says otherwise, and s. 40(3) says:

<blockquote><tt>Parental responsibilities may be allocated under an agreement or order such that they may be exercised by</tt></blockquote>
<blockquote><blockquote><tt>(a) one or more guardians only, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) each guardian acting separately or all guardians acting together.</tt></blockquote></blockquote>

Orders about guardianship and parental responsibilities can be varied by another order. Agreements about parental responsibilities can be changed if the parties decide to amend the agreement. If they can't agree, the court may set aside the agreement and replace it with an order about parental responsibilities.

===Guardianship===

Under s. 51(1) of the ''[[Family Law Act]]'', the court may make an order appointing someone as a guardian of a child or make an order ''terminating'' someone's guardianship of a child. This section doesn't say what the court should consider when terminating someone's guardianship. However, s.37 (1) says that:

<blockquote><tt>In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.</tt></blockquote>

Section 215 provides a general test to change orders that applies when no specific test is provided:

<blockquote><tt>... a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

In other words, to vary an order appointing a person as guardian, the applicant will have to show that there has been a change in circumstances and explain why it is in the best interests of the child that the person be removed as guardian.

===Parental responsibilities===

The ''[[Family Law Act]]'' provides a test to vary orders about parental responsibilities and a test to set aside agreements about parental responsibilities. Section 44(4) talks about agreements:

<blockquote><tt>... the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

Section 47 talks about orders:

<blockquote><tt>... a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.</tt></blockquote>

Under both tests, the court must also consider why the proposed result would or wouldn't be in the best interests of the child.

==Changing orders and agreements about access, parenting time and contact==

Orders and agreements about parenting schedules are most commonly varied because:
*one of the parties has been frustrating the schedule,
*a party is constantly late or cancels visits frequently,
*the child is older and is more able to spend more time with the visiting parent,
*a party has moved and the old parenting schedule is no longer convenient or,
*the child wishes to see the visiting party more or less often.

The case of ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'' also applies to changing access orders under the ''Divorce Act'': the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the application, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision about access as if the matter was being heard for the first time, with no presumption in favour of how things used to be.

Under ss. 47 and 60 of the ''[[Family Law Act]]'', the court may vary an order for parenting time or contact if it is satisfied that:

<blockquote><tt>... since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.</tt></blockquote>

Sections 44(4) and 58(4) allow the court to set aside an agreement about parenting time or contact if it is:

<blockquote><tt>...satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

When considering applications like these, both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court to consider the best interests of the child rather than the needs or interests of the parties.

===Vague parenting schedules===

Problems often crop up when an order or agreement says only that a parent will have liberal and generous time with a child, or sets a schedule that is too vague. In situations like this, it's too easy for a schedule not to work. What is liberal and generous time anyway? Who decides what is liberal and what is generous? Say an order or agreement says this:

<blockquote>"Sally will have parenting time from Friday to Sunday."</blockquote>

When exactly does Sally's access start? When does it end? Who is supposed to pick the child up and drop her off? Is the Sunday the Sunday immediately following the Friday or the Sunday a week later? A better order or agreement would say:

<blockquote>"Sally will have parenting time from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. Sally will be responsible for picking the child up on Fridays and Bob will be responsible for picking the child up on Sundays."</blockquote>

Even better would be an order or agreement that says:

<blockquote>"Sally will have the child from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. If the Friday is a statutory holiday or a school professional development date, Sally will have the child from Thursday at 4:00pm. If the Monday following the Sunday is a statutory holiday or a school professional development day, Sally will have the child until Monday at 6:00pm.</blockquote>
<blockquote>"Sally will be responsible for picking the child up at the beginning of her access to the child and Bob will be responsible for picking the child up at the conclusion of Sally's access to the child.</blockquote>
<blockquote>"In the event that Sally is unable to care for the child during a scheduled access visit, Sally will give at least two days' notice to Bob.</blockquote>
<blockquote>"On Fathers' Day, Sally's parenting time with the child will be suspended from 10:00am to 2:00pm, during which time Bob will have the child.</blockquote>
<blockquote>"Sally's parenting time with the child will be suspended during the summer, winter and spring school holidays, during which periods the following holiday access schedule will prevail..."</blockquote>

Where there has been a history of difficulties, the court will generally be prepared to provide specific terms setting out the parenting arrangements.

===Reducing time with a child===

Cases where the parenting schedule in an order or agreement has been varied to reduce a person's time with a child include in circumstances where:

*a party has moved far enough away as to make the original access schedule impossible to comply with,
*a mature child has expressed a wish not to see the person,
*a party has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*the parties' relationship has worsened to the point that they can no longer cooperate,
*a party has attempted to interfere with the child's relationship with the other party, or
*the party's time with the child is proving harmful to the child's mental or physical health and welfare.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report or an assessment of the needs of the child, the views of the child, and the ability of each of the child's caregivers to meet the child's needs. The types of assessments that are available to parties to a family law case in British Columbia are discussed in more detail at the start of the [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] chapter, under the heading [[Children in Family Law Matters#Reports and assessments|Reports and Assessments]].

===Increasing time with a child===

Of course, parenting schedules can also be changed to increase the amount of time a person has with a child. Circumstances where this has happened include where:

*a party was interfering with the child's relationship with the other party, so that more time was required to restore the relationship,
*a party was interfering with and unreasonably limiting the time provided to the other person in an order or agreement,
*a child is older and able to spend more time away from a parent,
*a child over the age of eleven or twelve or so has expressed a wish to see more of the other person.

These are just a few of the circumstances in which a person's time with the child can be increased from the amount given in an order or agreement. As long as there has been a change in circumstances since the order or agreement was made and the increased time is in the children's best interests, access arrangements should be adjusted.

==Relocating with or without a child==

Mobility is a fact of life in Canada. A parent who wants to move must have the other parent's consent or a court order. Generally, the reasons for moving include:

*there is an employment opportunity,
*the parent is in a new relationship with someone from out of town,
*the parent wants to be closer to family,
*there is a unique educational opportunity for either the parent or the children,
*there is a unique medical or therapeutic opportunity for either the parent or the children.

Normally, the other parent doesn't want the children to move since a move could hamper that parent's ability to see the children as frequently and could harm the child's relationship with that parent. This is especially true when a parent seeks to move to another province or another country. Even within British Columbia, a relatively short move from Richmond to Chilliwack, for example, can impair a parent's schedule and relationship with their child.

These problems, which used to be called ''mobility issues'', are handled under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' in different ways.

===The ''Divorce Act'' and ''Gordon v. Goertz''===

Relocation under the ''[[Divorce Act]]'' is about applying to vary an order for custody or access. Inevitably, a move of even only a few hours away can make it impossible for a spouse to have access to a child. In order for the spouse who is moving to avoid being in breach of an order for custody or access, the spouse will need to apply to the court for an order adjusting the arrangements for custody and access to allow the move. The most important case on this issue is ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', discussed above. The reasoning from that case is roughly this:

*The parent applying for a change in the custody or access order must first prove that there has been a material change in the circumstances affecting the child.
*If this threshold is met, the judge on the application must make a fresh assessment about what is in the best interests of the child, considering all of the relevant facts relating to the child's needs and the ability of the each parent to satisfy the child's needs.
*This assessment is based on the findings of the judge who made the previous order and the new circumstances.
*The assessment does not begin with a legal presumption in favour of the parent with whom the child mostly lives, although that parent's views are entitled to great respect.
*The focus is on the best interests of the child, not the interests, rights and entitlements of the parents.

It is always very difficult to say whether the court will allow a parent to move with the children or not. The case law following ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'' is quite contradictory and the best that can usually be said, apart from pointing out some general principles, is that a parent with the children's primary residence has almost a 60% chance of being allowed to do so. In 2011, Professor Rollie Thompson of the law school at Dalhousie University gave a presentation to local lawyers updating the case law on mobility issues in BC, and what he learned was this:

*The parent with primary care is able to move about 50% of the time in Canadian cases these days, down from 60%. Moves are permitted about 57% of the time in BC.
*Moves are allowed about half the time at trial, but are allowed about three-quarters of the time when the application is brought as a variation of a trial decision.
*Moves were refused in eight of nine cases where the parents had shared custody of the children, but were allowed in 17 of 18 cases (after counting appeals) where the parent wishing to move was primarily responsible for the care of the children. Where there wasn't a parent who was clearly responsible, the move was allowed in 54% of cases.
*Moves were allowed three-quarters of the time when the children were aged 0 to five, declining to about half the time for children aged six and older.
*Appeals from decisions allowing a move rarely succeed. Appeals from decisions refusing permission to move succeeded 66% of the time.

The tough part about all of this is that it's all fine and dandy to know what happens to people on a ''statistical'' basis, but statistics don't tell you anything about what is going to happen if ''you'' want to move! However, some of the circumstances that courts have found to favour or reject a proposed move are these:
{| class = wikitable
! Factors in Favour
! Factors Against
|-
|
*The spouse seeking the move has better job prospects or a guaranteed job at the proposed destination.
*The spouse has a support network of family and friends at the new home.
*There is some benefit at the new home not available at the old home, like better schools or medical programs.
*The spouses have resources available to them that will allow the other spouse to visit the children frequently, like a lot of money or being an employee of an airline.
*The children aren't particularly close to or have no relationship with the spouse who will be staying behind.
|
*The children have lived in their present setting for a significant amount of time and have established roots in their community.
*The move will damage or terminate the other spouse's relationship with the children.
*The move is motivated by a wish to alienate the children from the other spouse.
*The parent seeking the move has no particular ties to the destination, or the move is proposed solely for that spouse to be in a new relationship.
*There is no way to balance the effect of the move with more extended time with the other spouse, such as extended summer access, or access over the whole of the winter holiday.
|}
It is almost impossible to predict the result of an application to move under ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]''. Because relocation issues are among the most hotly argued and difficult issues there are in family law, the assistance of a lawyer is highly recommended.

===The rules under the ''Family Law Act''===

The situation is much different under the ''[[Family Law Act]]''. One of the most important changes this law has introduced are new legal obligations for guardians who are planning on relocating. There are different processes depending on whether there is a court order or agreement in place with respect to parenting arrangements.

Where there is no court order or agreement with respect to parenting arrangements in place, section 46 of the ''Family Law Act'' applies. Here is how that process works:

* Before there is a change to a child’s residence that can reasonably be expected to have a significant impact on that child’s relationship with another guardian, the guardian seeking the change in residence must bring an application for an order respecting parenting time, pursuant to s. 45 of the ''Family Law Act''.

** Section 46(2) of the Family Law Act sets out the test to determine whether there can be changes to a child’s residence: To determine the parenting arrangements that would be in the best interests of the child in the circumstances set out in subsection (1) of this section, the court
(a) must consider, in addition to the factors set out in section 37 (2) [best interests of child], the reasons for the change in the location of the child's residence, and
(b) must not consider whether the guardian who is planning to move would do so without the child.

Where the parties have an existing order or agreement with respect to parenting arrangements, the ''Family Law Act'' sets out two new tests to determine whether a guardian will be permitted to relocate if another guardian objects.

Here's how that process works:.

First, under s. 66, a guardian who plans a move, with or without the child, that will have a significant impact on the child's relationship with a guardian or other people with a significant role in the child's life must give written notice of the proposed move at least 60 days before the move, to all other ''guardians'' and ''persons with contact'' with the child. (The guardian who is moving can apply to court for an exception to this requirement.) The notice must state the place the guardian plans on moving to and the date of the move. This requirement applies whether a guardian is planning on moving with a child or by themselves.

Second, under s. 68, a guardian who objects to the proposed move must file an application in court to stop the move within 30 days of getting written notice of the move. The parties are required to try to resolve any disagreement about the move on their own, but this doesn't prevent a guardian from applying to stop the move. Only guardians can object; people with contact cannot. However, people with contact can make an application under section 59 of the ''Family Law Act'' or section 60 of the ''Family Law Act'' to seek an order or to change an existing order for contact, for the purpose of maintaining the relationship between the child and a person having contact with the child if the relocation occurs.

Third, if the parties can't resolve their differences about the move, then either guardian can apply to court for orders allowing or preventing the proposed move. There are different tests that the court will apply depending on whether the guardians have "substantially equal parenting time". The ''moving guardian'' must prove, under s. 69(4) that:

#they have proposed to move ''in good faith,'' and
#they have proposed ''reasonable and workable'' arrangements to preserve the child's relationships with other guardians and persons with significant roles in the child's life.

If the guardian who is moving can do this, the move is presumed to be in the child's best interests unless the guardian who is objecting to the move can convince the court otherwise.

The test is a bit different if the moving guardian and the objecting guardian share the child's time equally or almost equally. In that case, the moving guardian must prove, under s. 69(5) that:

#they have proposed to move "in good faith,"
#they have proposed "reasonable and workable" arrangements to preserve the child's relationships with other guardians and persons with significant roles in the child's life, and
#the move is in the child's best interests.

The meaning of ''good faith'' is discussed at s. 69(6):

<blockquote><tt>For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the reasons for the proposed relocation;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) whether notice was given under section 66;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) any restrictions on relocation contained in a written agreement or an order.</tt></blockquote></blockquote>

If the move is allowed, the objecting guardian may ask the court to vary the old arrangements for parenting time and, under s. 70(2), the court is required to "seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order."

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

* [http://www.familylaw.lss.bc.ca/guides/change/cantAgree/index.php Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.familylaw.lss.bc.ca/guides/change/cantAgree/index.php Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]

{{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]],April 16, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Changing Family Law Orders and Agreements Involving Children

2019-04-16T16:56:48Z

Samantha Rapoport:

{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
|ChapterEditors = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change a final order]
}}There really is no such thing as an absolutely final order or agreement involving children. All orders and agreements involving children may be changed, but, in general, something new must have happened since the original order or agreement was made that affects the best interests of the children. In family law, ''change in circumstances'' is the term used to describe when something new has happened that justifies a change to the order or agreement.

This section talks about changing orders for custody and access under the ''[[Divorce Act]]'' and about changing orders and agreements about parenting arrangements and contact under the ''[[Family Law Act]]''. It also discusses relocation, a special problem that comes up when a guardian wants to move, usually with the children, to a different town, province or country.

==Introduction==

Changing an order is called ''varying'' an order. An order can only be varied by a new order. Changing an agreement is called ''amending'' an agreement. An agreement can be amended by making a new agreement, usually called an ''addendum agreement'' or something to the same effect. It can also be changed by the court setting the agreement aside and making an order in its place.

Parents usually want to vary an order or agreement because something has changed. The court will not vary an order or agreement lightly. The person who wants to change an order must establish that there has been a "change in circumstances" since the order was made.

The process for applying to vary an order will depend on whether the original order was made under the federal ''Divorce Act'' or the provincial ''Family Law Act''. If it was made under the ''Family Law Act'', it will depend on whether the order was made by the Supreme Court or the Provincial Court. Almost the same general considerations that apply to varying orders apply to setting aside agreements.

===The ''Divorce Act''===

Under s. 5 of the ''[[Divorce Act]]'', the Supreme Court has the jurisdiction to vary a ''Divorce Act'' order for custody or access made anywhere in Canada as long as the person making the application, (the applicant), ordinarily lives in British Columbia when the application is made or if both spouses have agreed to have the application heard here. However, if the child has deeper roots and greater social ties in the other province or territory, the court is likely to transfer the matter to be heard in the other province or territory.

Section 17 gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access. Section 17 also sets out the test for the variation of custody and access orders, and the principle that it is in a child's best interests to have maximum contact with each parent. Section 17 says this:

<blockquote><tt>(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote>
<blockquote><tt>(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.</tt></blockquote>

It is up to the applicant to show that there has been a change in the "condition, means, needs or other circumstances of the child" since the last order was made or the court won't change the order.

===The ''Family Law Act''===

The rules in the ''[[Family Law Act]]'' about varying orders and setting aside agreements are different from each other, and also change depending on the subject of the part of the order or agreement that is sought to be varied or set aside.

====Varying orders====

Both the Supreme Court and the Provincial Court have the jurisdiction to vary orders and set aside agreements for guardianship, parenting arrangements, and contact. As a rule of thumb, applications to vary orders can only be brought to the court that made the original order: an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''Family Law Act'' sets out the test to vary orders about parenting arrangements:

<blockquote><tt>On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.</tt></blockquote>

The test to vary orders about contact is at s. 60, and says exactly the same thing, just with the word "contact" in place of the phrase "parenting arrangements".

The general test under the ''[[Family Law Act]]'' to vary orders is at s. 215(1). It applies when there isn't a specific test required to vary a particular order, such as the way ss. 47 and 60 set out the required test to vary orders about parenting arrangements and contact. Since there's no specific test to vary orders for guardianship, the general test set out in s. 251(1) will apply:

<blockquote><tt>Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

Whenever the court is asked to make an order about guardianship, parenting arrangements, and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).

In [http://canlii.ca/t/gnftl ''Williamson v. Williamson''], 2016 BCCA 87 the Court of Appeal confirmed the test to apply in an application to vary parenting time arrangements under the ''Family Law Act'' is the same test that applies to the variation of custody arrangements under the ''Divorce Act''. Under this test, a ''material change in circumstances'' is:

# a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child,
# which materially affects the child, and
# which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

====Setting aside agreements====

Under the ''[[Family Law Act]]'', the court cannot vary or amend a valid agreement. When the court is convinced that an agreement must change, the court will set aside the parts of the agreement that are causing the problem and make an order in place of the parts of the agreement that were set aside. Section 214 of the Act says this:

<blockquote><tt>(1) If an order is made to set aside part of an agreement, the part is deemed to be severed from the remainder of the agreement.</tt></blockquote>
<blockquote><tt>(2) A court may incorporate into an order all or part of a written agreement respecting a family law dispute made by the parties to the proceeding and, unless the court orders otherwise,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>

The legal test that the court must apply to set aside part of an agreement depends on the nature of the change requested. Where the change sought relates to parenting arrangements for a child, the court will consider whether there has been a change in circumstances and the court will want to ensure that the agreement is in the best interests of the child.

==Changing orders about custody==

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, sets out the factors a court must consider when hearing an application to vary orders for custody or access made under the ''[[Divorce Act]]'':

*The parent applying for a change in the custody or access order must first prove that there has been a material change in the circumstances affecting the child.
*If this threshold is met, the judge on the application must make a fresh assessment about what is in the best interests of the child, considering all of the relevant facts relating to the child's needs and the ability of the each parent to satisfy the child's needs.
*This assessment is based on the findings of the judge who made the previous order and the new circumstances.
*The assessment does not begin with a legal presumption in favour of the parent with whom the child mostly lives, although that parent's views are entitled to great respect.
*The focus is on the best interests of the child, not the interests, rights and entitlements of the parents.

In other words, the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision, as if the case was being heard for the first time. Most importantly, this means that there is no automatic presumption in favour of the status quo.

Cases where an order for custody has been varied include circumstances such as where:

*The change is in the best interests of the children in the long run.
*The parent with the children's primary residence has attempted to alienate the children from the other parent.
*The parent with the children's primary residence has repeatedly frustrated the other parent's access to the children.
*The child has been apprehended by child protection workers.
*The child has been abused by the parent with the children's primary residence.
*A mature child has expressed a wish to live with the other parent.

The courts are unlikely to change custody where the children are happy in an existing stable and secure setting.

==Changing orders and agreements about guardianship and parental responsibilities==

The ''[[Family Law Act]]'' has rules about who is presumed to be a guardian. When someone is presumed to be a guardian, that person ''is'' a guardian, without the need for an order. The only people who must have an order making them a guardian are the people who don't fit into those presumptions, like aunts and uncles, grandparents, and other people who have established a caring relationship with a child.

People who are guardians, whether by a court order or as a result of the presumptions of guardianship, manage the care and raising of child by exercising ''parental responsibilities''. Under s. 40(2) of the act, parental responsibilities are presumed to be shared by all guardians until an order or an agreement says otherwise, and s. 40(3) says:

<blockquote><tt>Parental responsibilities may be allocated under an agreement or order such that they may be exercised by</tt></blockquote>
<blockquote><blockquote><tt>(a) one or more guardians only, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) each guardian acting separately or all guardians acting together.</tt></blockquote></blockquote>

Orders about guardianship and parental responsibilities can be varied by another order. Agreements about parental responsibilities can be changed if the parties decide to amend the agreement. If they can't agree, the court may set aside the agreement and replace it with an order about parental responsibilities.

===Guardianship===

Under s. 51(1) of the ''[[Family Law Act]]'', the court may make an order appointing someone as a guardian of a child or make an order ''terminating'' someone's guardianship of a child. This section doesn't say what the court should consider when terminating someone's guardianship. However, s.37 (1) says that:

<blockquote><tt>In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.</tt></blockquote>

Section 215 provides a general test to change orders that applies when no specific test is provided:

<blockquote><tt>... a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

In other words, to vary an order appointing a person as guardian, the applicant will have to show that there has been a change in circumstances and explain why it is in the best interests of the child that the person be removed as guardian.

===Parental responsibilities===

The ''[[Family Law Act]]'' provides a test to vary orders about parental responsibilities and a test to set aside agreements about parental responsibilities. Section 44(4) talks about agreements:

<blockquote><tt>... the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

Section 47 talks about orders:

<blockquote><tt>... a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.</tt></blockquote>

Under both tests, the court must also consider why the proposed result would or wouldn't be in the best interests of the child.

==Changing orders and agreements about access, parenting time and contact==

Orders and agreements about parenting schedules are most commonly varied because:
*one of the parties has been frustrating the schedule,
*a party is constantly late or cancels visits frequently,
*the child is older and is more able to spend more time with the visiting parent,
*a party has moved and the old parenting schedule is no longer convenient or,
*the child wishes to see the visiting party more or less often.

The case of ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'' also applies to changing access orders under the ''Divorce Act'': the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the application, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision about access as if the matter was being heard for the first time, with no presumption in favour of how things used to be.

Under ss. 47 and 60 of the ''[[Family Law Act]]'', the court may vary an order for parenting time or contact if it is satisfied that:

<blockquote><tt>... since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.</tt></blockquote>

Sections 44(4) and 58(4) allow the court to set aside an agreement about parenting time or contact if it is:

<blockquote><tt>...satisfied that the agreement is not in the best interests of the child.</tt></blockquote>

When considering applications like these, both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court to consider the best interests of the child rather than the needs or interests of the parties.

===Vague parenting schedules===

Problems often crop up when an order or agreement says only that a parent will have liberal and generous time with a child, or sets a schedule that is too vague. In situations like this, it's too easy for a schedule not to work. What is liberal and generous time anyway? Who decides what is liberal and what is generous? Say an order or agreement says this:

<blockquote>"Sally will have parenting time from Friday to Sunday."</blockquote>

When exactly does Sally's access start? When does it end? Who is supposed to pick the child up and drop her off? Is the Sunday the Sunday immediately following the Friday or the Sunday a week later? A better order or agreement would say:

<blockquote>"Sally will have parenting time from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. Sally will be responsible for picking the child up on Fridays and Bob will be responsible for picking the child up on Sundays."</blockquote>

Even better would be an order or agreement that says:

<blockquote>"Sally will have the child from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. If the Friday is a statutory holiday or a school professional development date, Sally will have the child from Thursday at 4:00pm. If the Monday following the Sunday is a statutory holiday or a school professional development day, Sally will have the child until Monday at 6:00pm.</blockquote>
<blockquote>"Sally will be responsible for picking the child up at the beginning of her access to the child and Bob will be responsible for picking the child up at the conclusion of Sally's access to the child.</blockquote>
<blockquote>"In the event that Sally is unable to care for the child during a scheduled access visit, Sally will give at least two days' notice to Bob.</blockquote>
<blockquote>"On Fathers' Day, Sally's parenting time with the child will be suspended from 10:00am to 2:00pm, during which time Bob will have the child.</blockquote>
<blockquote>"Sally's parenting time with the child will be suspended during the summer, winter and spring school holidays, during which periods the following holiday access schedule will prevail..."</blockquote>

Where there has been a history of difficulties, the court will generally be prepared to provide specific terms setting out the parenting arrangements.

===Reducing time with a child===

Cases where the parenting schedule in an order or agreement has been varied to reduce a person's time with a child include in circumstances where:

*a party has moved far enough away as to make the original access schedule impossible to comply with,
*a mature child has expressed a wish not to see the person,
*a party has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*the parties' relationship has worsened to the point that they can no longer cooperate,
*a party has attempted to interfere with the child's relationship with the other party, and
*the party's time with the child is proving harmful to the child's mental or physical health and welfare.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report or an assessment of the needs of the child, the views of the child, and the ability of each of the child's caregivers to meet the child's needs. The types of assessments that are available to parties to a family law case in British Columbia are discussed in more detail at the start of the [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] chapter, under the heading [[Children in Family Law Matters#Reports and assessments|Reports and Assessments]].

===Increasing time with a child===

Of course, parenting schedules can also be changed to increase the amount of time a person has with a child. Circumstances where this has happened include where:

*a party was interfering with the child's relationship with the other party, so that more time was required to restore the relationship,
*a party was interfering with and unreasonably limiting the time provided to the other person in an order or agreement,
*a child is older and able to spend more time away from a parent,
*a child over the age of eleven or twelve or so has expressed a wish to see more of the other person.

These are just a few of the circumstances in which a person's time with the child can be increased from the amount given in an order or agreement. As long as there has been a change in circumstances since the order or agreement was made and the increased time is in the children's best interests, access arrangements should be adjusted.

==Relocating with or without a child==

Mobility is a fact of life in Canada. A parent who wants to move must have the other parent's consent or a court order. Generally, the reasons for moving include:

*there is an employment opportunity,
*the parent is in a new relationship with someone from out of town,
*the parent wants to be closer to family,
*there is a unique educational opportunity for either the parent or the children,
*there is a unique medical or therapeutic opportunity for either the parent or the children.

Normally, the other parent doesn't want the children to move since a move could hamper that parent's ability to see the children as frequently and could harm the child's relationship with that parent. This is especially true when a parent seeks to move to another province or another country. Even within British Columbia, a relatively short move from Richmond to Chilliwack, for example, can impair a parent's schedule and relationship with their child.

These problems, which used to be called ''mobility issues'', are handled under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' in different ways.

===The ''Divorce Act'' and ''Gordon v. Goertz''===

Relocation under the ''[[Divorce Act]]'' is about applying to vary an order for custody or access. Inevitably, a move of even only a few hours away can make it impossible for a spouse to have access to a child. In order for the spouse who is moving to avoid being in breach of an order for custody or access, the spouse will need to apply to the court for an order adjusting the arrangements for custody and access to allow the move. The most important case on this issue is ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', discussed above. The reasoning from that case is roughly this:

*The parent applying for a change in the custody or access order must first prove that there has been a material change in the circumstances affecting the child.
*If this threshold is met, the judge on the application must make a fresh assessment about what is in the best interests of the child, considering all of the relevant facts relating to the child's needs and the ability of the each parent to satisfy the child's needs.
*This assessment is based on the findings of the judge who made the previous order and the new circumstances.
*The assessment does not begin with a legal presumption in favour of the parent with whom the child mostly lives, although that parent's views are entitled to great respect.
*The focus is on the best interests of the child, not the interests, rights and entitlements of the parents.

It is always very difficult to say whether the court will allow a parent to move with the children or not. The case law following ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'' is quite contradictory and the best than can usually be said, apart from pointing out some general principles, is that a parent with the children's primary residence has almost a 60% chance of being allowed to do so. In 2011, Professor Rollie Thompson of the law school at Dalhousie University gave a presentation to local lawyers updating the case law on mobility issues in BC, and what he learned was this:

*The parent with primary care is able to move about 50% of the time in Canadian cases these days, down from 60%. Moves are permitted about 57% of the time in BC.
*Moves are allowed about half the time at trial, but are allowed about three-quarters of the time when the application is brought as a variation of a trial decision.
*Moves were refused in eight of nine cases where the parents had shared custody of the children, but were allowed in 17 of 18 cases (after counting appeals) where the parent wishing to move was primarily responsible for the care of the children. Where there wasn't a parent who was clearly responsible, the move was allowed in 54% of cases.
*Moves were allowed three-quarters of the time when the children were aged 0 to five, declining to about half the time for children aged six and older.
*Appeals from decisions allowing a move rarely succeed. Appeals from decisions refusing permission to move succeeded 66% of the time.

The tough part about all of this is that it's all fine and dandy to know what happens to people on a ''statistical'' basis, but statistics don't tell you anything about what is going to happen if ''you'' want to move! However, some of the circumstances that courts have found to favour or reject a proposed move are these:
{| class = wikitable
! Factors in Favour
! Factors Against
|-
|
*The spouse seeking the move has better job prospects or a guaranteed job at the proposed destination.
*The spouse has a support network of family and friends at the new home.
*There is some benefit at the new home not available at the old home, like better schools or medical programs.
*The spouses have resources available to them that will allow the other spouse to visit the children frequently, like a lot of money or being an employee of an airline.
*The children aren't particularly close to or have no relationship with the spouse who will be staying behind.
|
*The children have lived in their present setting for a significant amount of time and have established roots in their community.
*The move will damage or terminate the other spouse's relationship with the children.
*The move is motivated by a wish to alienate the children from the other spouse.
*The parent seeking the move has no particular ties to the destination, or the move is proposed solely for that spouse to be in a new relationship.
*There is no way to balance the effect of the move with more extended time with the other spouse, such as extended summer access, or access over the whole of the winter holiday.
|}
It is almost impossible to predict the result of an application to move under ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]''. Because relocation issues are among the most hotly argued and difficult issues there are in family law, the assistance of a lawyer is highly recommended.

===The rules under the ''Family Law Act''===

The situation is much different under the ''[[Family Law Act]]''. One of the most important changes this law has introduced are new legal obligations for guardians who are planning on relocating. There are two new tests to determine whether a guardian will be permitted to relocate if another guardian objects.

Here's how it works.

First, under s. 66, a guardian who plans a move, with or without the child, that will have a significant impact on the child's relationship with a guardian or other people with a significant role in the child's life must give written notice of the proposed move at least 60 days before the move, to all other ''guardians'' and ''persons with contact'' with the child. (The guardian who is moving can apply to court for an exception to this requirement.) The notice must state the place the guardian plans on moving to and the date of the move. This requirement applies whether a guardian is planning on moving with a child or by themself.

Second, under s. 68, a guardian who objects to the proposed move must file an application in court to stop the move within 30 days of getting written notice of the move. The parties are required to try to resolve any disagreement about the move on their own, but this doesn't prevent a guardian from applying to stop the move. Only guardians can object; people with contact cannot.

Third, if the parties can't resolve their differences about the move, then either guardian can apply to court for orders allowing or preventing the proposed move. There are different tests that the court will apply depending on whether the guardians have "substantially equal parenting time". The ''moving guardian'' must prove, under s. 69(4) that:

#they have proposed to move ''in good faith,'' and
#they have proposed ''reasonable and workable'' arrangements to preserve the child's relationships with other guardians and persons with significant roles in the child's life.

If the guardian who is moving can do this, the move is presumed to be in the child's best interests unless the guardian who is objecting to the move can convince the court otherwise.

The test is a bit different if the moving guardian and the objecting guardian share the child's time equally or almost equally. In that case, the moving guardian must prove, under s. 69(5) that:

#they have proposed to move "in good faith,"
#they have proposed "reasonable and workable" arrangements to preserve the child's relationships with other guardians and persons with significant roles in the child's life, and
#the move is in the child's best interests.

The meaning of ''good faith'' is discussed at s. 69(6):

<blockquote><tt>For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the reasons for the proposed relocation;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) whether notice was given under section 66;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) any restrictions on relocation contained in a written agreement or an order.</tt></blockquote></blockquote>

If the move is allowed, the objecting guardian may ask the court to vary the old arrangements for parenting time and, under s. 70(2), the court is required to "seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order."

A person with contact lacks the ability to apply to stop the move.
==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

* [http://www.familylaw.lss.bc.ca/guides/change/cantAgree/index.php Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.familylaw.lss.bc.ca/guides/change/cantAgree/index.php Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]

{{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]],April 14, 2017}}

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[[Category:JP Boyd on Family Law]]

Custody and Access

2019-04-15T23:46:03Z

Samantha Rapoport: Mary and I have comprehensively reviewed

{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
|ChapterEditors = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]]
}}

When married spouses with children younger than the age of majority (age 19 in BC) separate, decisions must be made about how the children will be brought up, who they will live with, and how they will be cared for. For many people, arguments about parenting issues like these are the most difficult parts of ending a relationship. Under the ''[[Divorce Act]]'', which applies just to married spouses, these issues are addressed through orders about custody and access.

This section talks about custody and access. It discusses the factors that govern awards of custody and access and the types of orders about custody and access that can be made.

Arrangements for a child's care can also be made under the provincial [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html ''Family Law Act''], which applies to both married and un-married spouses. Look at the information under [[Children in Family Law Matters]] for a summary of how the ''Family Law Act'' and the ''Divorce Act'' are applied by the courts in different situations.

==Introduction==

The federal ''[[Divorce Act]]'' talks about the care of children in terms of custody and access. ''Custody'' is the right to have the child with you and the right to make parenting decisions about the child, such as deciding where a child goes to school, how a sick child is treated, whether a child is raised in a religion, and what sports the child plays after school. ''Access'' is the schedule of the child's time between spouses.

Custody can be held by one or both spouses. An arrangement where both spouses share custody is called ''joint custody''. Having joint custody doesn't mean the child's time is equally split between the spouses' homes, but it does mean that both spouses will participate in making parenting decisions. An arrangement where only one spouse has custody is called ''sole custody''.

Access generally refers to the schedule of the child's time between spouses. There are no fixed rules about what access should look like. The factors that the court usually thinks about when making decisions about access include:

*the distance between the spouses' homes,
*the quality of the child's relationship with both spouses,
*the history of the child's care before the spouses separated,
*the child's age and stage of development,
*any arrangements that have already been made for siblings, and
*any limitations on a spouses' parenting capacity.

A spouse's access to a child is entirely different and separate from their obligation to pay child support. Child support is not a fee paid to exercise access, nor is it a fee charged to allow access. Child support is paid by one spouse to the other to help cover the costs associated with raising the child and to help ensure that the child has as positive and as enriching a childhood as possible. Access, on the other hand, is the privilege of a spouse to visit and spend time with their child, so that the child can have the benefit of a strong, loving and meaningful relationship with both spouses.

Other people, usually relatives of the child like a grandparent, can have custody or access to a child. To apply for an order for custody or access, people who aren't spouses must first get the court's permission, and then make their application. Applications like these aren't very common.

===The ''Divorce Act''===

The ''[[Divorce Act]]'' describes children as ''children of the marriage'', and s. 2(1) of the act defines a child of the marriage as the child of one or both spouses, providing that the child is under the age of majority at the time, or older but unable to withdraw from the care of their parents. The ''Divorce Act'' is only available to parents who are or used to be married to each other. The person making the application under the ''Divorce Act'' must have been ''habitually resident'' in the province in which the application is made for at least one year.

These are the important sections of the ''[[Divorce Act]]'' which talk about custody and access:

*s. 2: definitions
*s. 4: the court's jurisdiction to make custody and access orders
*s. 5: the court's jurisdiction to change orders
*s. 16: custody and access orders
*s. 17: variation proceedings

===Who can apply for custody and access===

In general, anyone who has a connection to a child may apply for custody of the child. Normally, the people who apply for custody are the biological or adoptive parents of a child, but grandparents and other adults involved with the child may also apply for custody if they wish. Persons other than parents also have the option to apply for "guardianship" or "contact: with a child under the provincial ''Family Law Act.'' See the section of this chapter on [[Children in Family Law Matters]] for more information.

====Spouses====

According to s. 16(1) and (4) of the ''[[Divorce Act]]'' any person or persons can be granted custody of or access to a child. Where that person is not a spouse, they must apply to the court under s. 16(3) for permission to apply for a custody or access order. The court will grant custody and access to people other than parents and stepparents in the right circumstances.

====People other than parents and stepparents====

While the ''Divorce Act'' is clear that anyone can apply for the custody of a child, the court will presume that the biological parents, adoptive parents, and stepparents of a child are entitled to raise the children unless there is a clear reason why this should not be the case. Again, as in all matters touching on children, the court's decision will rest wholly on what is in the best interests of the child, not what is in the interests of the child's parents or those of third parties.

The general rules dealing with competing custody claims between a non-parent and a parent are these:
*The natural or adoptive parents of a child have a ''presumptive'' right to the custody of that child, except where they have abandoned the child or demonstrated a serious lack of fitness to have custody, as might be the case in situations of abuse or neglect.
*Custody should only be given to third parties when the natural or adoptive parents are unwilling, unable, or unfit to care for the child.
*The wishes of the natural or adoptive parents should be heeded unless there is a serious reason why they shouldn't be, as might be in the case if the wishes of the parents posed a threat to the child's health and safety.

The common theme here is that there must be a real and substantial concern about the fitness of the natural or adoptive parents' ability to care for a child before that child is taken away from them and given to a third party.

Children may however have an interest in remaining involved and in contact with the other people in their lives, such as grandparents, cousins, aunts, uncles, long-term caregivers, and so forth. Grandparents, and other people who aren't parents, can apply for access to children on their own, with or without the cooperation of the parents.

More information about the interests grandparents and other non-parents may have in a child is provided in the [[Parenting After Separation]] and [[Guardianship, Parenting Arrangements and Contact]] sections of this chapter.

===Factors in custody awards===

There are two sets of factors that the court will consider in making an order for custody: the factors set out in the legislation and the additional factors that have developed through the courts. As far as the legislation is concerned, s. 16(8) of the ''[[Divorce Act]]'' provides that:

<blockquote><tt>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.</tt></blockquote>

The courts have expanded these factors into the following general principles:

*The parent most likely to be granted sole custody is the person who was the children's primary caregiver during the relationship, assuming that it's necessary to make an order for sole custody for some reason.
*Each parent's character, fitness and ability to parent may be considered in determining custody, depending on the circumstances of the case and as long as issues like this are genuinely important and relevant.
*The court may consider each parent's mental and physical capacity in determining custody, depending on the circumstances of the case and again as long as issues like this are genuinely important and relevant.
*Siblings will usually be kept together, although they can be separated when it would be in their best interests to live apart.
*Where the children are in a stable and satisfactory setting, the court will be reluctant to alter the status quo, unless the long-term interests of the children outweigh the benefits of disturbing their present stability.
*The court will generally take into account the preferences of children who are 10 or 11 years old or older, but the court will not be bound to follow the children's wishes.

There is no guaranteed way to predict the outcome of a battle for custody. Some people believe that the courts will prefer giving custody of children to their mothers; others believe that the courts have adopted a more modern approach which focuses on parenting rather than on gender. Either way, the critical factor in a custody award is the best interests of the child. The parent who is obviously the primary caregiver will usually be the person with whom it is in the child's best interests to remain.

While both the ''Divorce Act'' and the ''Family Law Act'' speak of a child's best interests, section 16(10) of the ''Divorce Act'', the ''Maximum Contact Principle'' flies in the face of the ''Family Law Act's'' presumption in s. 40(4) that in making parenting arrangements, no particular arrangement is presumed to be in the best interests of a child.

===Factors in access awards===

Section 16(10) of the ''Divorce Act'' says this about making orders for custody and access:

<blockquote><tt>In making an order under this section, 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>

This subsection has come to be known as the ''maximum contact principle'', for the obvious reason. This principle is not absolute, however. As the Court of Appeal in [http://canlii.ca/t/h420f ''R. (T.) v. R. (D.)''], 2017 BCCA 203 recently explained, the maximum contact principle is "tempered by the fact that contact must still be in the child's best interests." For example, it would not be in a child's best interests to have extensive visits with a parent who is abusive, trash-talks the other parent, has poor parenting skills, is addicted to drugs or alcohol, or has a history of being uninvolved in the child's life. If a parent's past conduct is relevant to their ability to act as a parent, then that past conduct may be considered.

The following are some of the factors the courts will consider in making an order for access.

*'''Age of the child:''' The younger a child is, the more likely it is that an access award will be for short but frequent time periods only. The older a child is, the more likely it is that access will be granted for overnight visits and for more than one day in a row. Younger children often require more constant physical attention and more extended periods of time with the custodial parent.
*'''Distance between homes:''' If one parent lives far away from the other parent, the court may grant access on holidays or long weekends alone. Younger children, in general, do not have the tolerance for long road trips or extended air or ferry travel. Even school-age children may find extended travel times uncomfortable and disrupting.
*'''Work schedules:''' Access schedules must accommodate parents' work schedules. If a parent is off work and available to care for the children when the other parent is at work, the parent who isn't working ought to have the children. Parents' availability also dictates the timing of pick-ups and drop-offs and responsibility for the children when they're at school.
*'''Conduct of a spouse:''' If a parent is unable to meet the child's needs or behaves inappropriately, access to the child may be restricted. In the past, access has been denied to non-custodial parents with a history of alcoholism, abuse, or pedophilia, or who have abducted the child or attempted to alienate the child from the other parent.
*'''Health of a spouse:''' If a parent has health problems that affect their ability to care for the child or their relationship with the child, a court may limit access.
*'''Preferences of the child:''' The court will consider the wishes of the child once they reach about 10 to 12 years of age, although there really is no magic age and the court will not be bound by the child's wishes. Younger children are generally assumed to be too emotionally and intellectually immature to make a reasoned decision about access.

There really is no standard pattern of access. All of these factors usually get taken into account when an access schedule is designed, and in general an access schedule can be as creative as the flexibility of the spouses and common sense allow.

This chapter has a chart of different parenting schedules that accommodate some of these concerns in the section [[Parenting after Separation]].

==Types of custody order==

Custody orders are either one of two types. They are either ''interim orders'', made after a court proceeding has started but before it has concluded, or they are ''final orders'' made following a settlement or a trial. In general, any kind of order that can be made on a final basis can also be made on an interim basis.

===Interim orders===

Interim orders are usually intended to provide a rough structure to the legal relationship between the parties and their children that will last until the matter is finally resolved at trial. Interim orders are not meant to be perfect orders and are often made on less than perfect evidence. The result at trial may be the same or different than the situation in the interim.

An interim custody order is not a final determination of the issue and while the same considerations are applied in making an interim order as they are in a final order, a greater emphasis is placed on the child's immediate and short-term best interests. As a result, the courts will often preserve the existing situation (the status quo) and leave the child with whichever parent they are mostly living with, rather than disturb the child and require a change of homes. In other words, if the father left the family home when the parties separated, leaving the children with their mother, the court will likely allow that situation to stand until the final decision is made.

It can be difficult to change the children's living circumstances once a stable arrangement has been reached, and both parents should be very careful and consider their options if things come to the point where one parent has to move out of the family home. Interim orders can, however, be changed. Generally, a parent will apply to vary an interim order where there has been a change in circumstances that has affected the best interests of the child. Where there has not been such a change in circumstances, the interim order will usually stay as it was.

===Sole custody===

A parent with sole custody is the parent with whom the child primarily lives. That parent is responsible for the child on a day-to-day basis.

For some couples, sole custody is ideal. In such cases, one parent, typically the parent who was not the children's primary caregiver during the relationship, has less of a personal interest in being with the children all of the time than the other parent, and is quite content to resign custody. In other cases, the parents live too far apart from each other, or have such a poor relationship with each other, that any other order wouldn't work.

For other couples, sole custody is necessary to protect the children from the conflict between their parents. Where emotions run too high, and the parties find themselves simply incapable of communicating with each other without fighting and exchanging insults, sole custody may be necessary to shield children from their parents' conflict and give them as much stability as possible.

===Joint custody===

An order for joint custody gives each parent custody of the children. In such cases the parents need to work together and cooperate in raising the children. The children may still spend more time — sometimes a lot more time — at one parent's home than the other, but both parents will be the children's joint custodians and their joint guardians.

It used to be the case that where the parties had trouble communicating with one another, the courts would automatically make an order for sole custody. This view has pretty much disappeared, and the courts will usually allow even highly conflicted parents to have joint custody, as long as they share a fairly common idea of how the children should be brought up and are mature enough to keep their disputes between themselves. In a 1996 case from our Court of Appeal, ''[http://canlii.ca/t/1f031 Robinson v. Filyk]'', 1996 CanLII 3310 (BC CA) the court said that there should be no presumptions in favour of or opposed to joint custody, nor any presumption that joint custody should be allowed only where the parents are able to get along and communicate with each other:

<blockquote>"It is now clear that legal and factual presumptions have no place in an enquiry into the best interests of a child, however much predictive value they may have. The Supreme Court of Canada has stated absolutely clearly that such presumptions detract from the individual justice to which every child is entitled."</blockquote>

However, our Supreme Court of British Columbia commented on ''Robinson'' in a 2010 case called ''[http://canlii.ca/t/2f34j B.T. v. B.L.]'', 2010 BCSC 1813 saying that the courts have since "moved away from presuming that if parties have difficulty communicating, joint custody is not appropriate," suggesting that there may in fact be an unspoken, unlegislated presumption in favour of joint custody.

Whether parents have joint or sole custody depends more on their relationship and approaches to parenting than it does on how much time each parent has with the children. A parent can see the children only on every other weekend, or live in another province altogether, and still have joint custody with the other parent. Joint custody is not about an equal sharing of the children's time.

When spouses have joint custody, they need to work together and cooperate in raising the children. This can sometimes be difficult, particularly when there is a lot of conflict in the spouses' relationship with one another. Before the ''[[Family Law Act]]'' came into effect, the rights and obligations involved in joint custody were usually addressed through a guardianship order under the ''Family Relations Act'', in particular through two models of joint guardianship, the Horn model and the Joyce model. The ''Family Law Act'' doesn't talk about guardianship the way the old law did and can't be used to spell out spouses' rights and obligations in the same way. However, since joint custody involves the need to work together and cooperate in making parenting decisions, the models can still work. They just need to be changed a bit.

====Joyce and Horn Model====

The following two sections talk about orders that were made under the old family law legislation, the ''Family Relations Act''. While the courts and many lawyers are familiar with the Joyce and Horn Models, when competing applications are brought under the ''Divorce Act'' and the ''Family Law Act'', reliance on these Models can result in confusion. If the parents aren't sharing all parenting responsibilities, then a Master Horn or a Master Joyce order may be helpful.

====The Joyce Model====

The Joyce Model, created by Mr. Justice Joyce, is fairly detailed and requires spouses to consult with one another on all important decisions affecting the child and to make their best efforts to work together to reach a solution that is in the best interests of the child. When spouses can't agree on a decision, the Joyce model might say that one spouse will have the last word, or it might say that the spouses will try to mediate the issue, consult a child psychologist about the issue, or ask a judge for an order on the issue.

Here's the standard version of the Joyce Model adapted for spouses who have joint custody:

<blockquote>The spouses will have joint custody of the child on the following terms:</blockquote>
:#in the event of the death of a spouse, the surviving spouse will have sole custody of the child,
:#each spouse will have the obligation to advise the other spouse of any matters of a significant nature affecting the child,
:#each spouse will have the obligation to discuss with the other spouse any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction, and general welfare,
:#the spouses will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions,
:#in the event that the spouses cannot reach agreement on a significant decision despite their best efforts, the spouse with the primary residence of the child will be entitled to make those decisions and the other spouse will have the right to apply for an order respecting any decision the spouse considers contrary to the best interests of the child, under s. 16(1) of the ''Divorce Act'', and
:#each spouse will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third-party caregivers.

You can download a version of the adapted Joyce Model in PDF format in the resources section at the end of this section.

====The Horn Model====

The Horn model, created by Master Horn, is more about spouses' rights to get information about the child, usually about the child's schooling, health, and extracurricular activities. The Horn model implies that the spouse with whom the child mostly lives will be entitled to make decisions about the child as they see fit, with the other spouse having a right to get information about the child and be consulted about important decisions involving the child.

Here's the standard version of the Joyce model adapted for spouses who have joint custody:

<blockquote>The spouses will have joint custody of the child and the spouse without the child’s primary residence will have the right:</blockquote>
:#to be informed of the child's medical and dental practitioners,
:#to contact the child's medical and dental practitioners and obtain the child's medical and dental records,
:#to be consulted with respect to the selection of the child's alternative caregivers, such as daycare and preschool,
:#to consult with the children's alternative caregivers and teachers,
:#to be informed of events at the child's schools or daycare so that the parent without primary care may attend,
:#to be informed of parent/teacher nights so that the parent without primary care may attend,
:#to be consulted with respect to any significant health issues relating to the child, and
:#to be consulted with respect to any significant change in the child's social environment.

You can download a version of the adapted Horn model in PDF format in the resources section at the end of this section.

===Shared custody===

Shared custody is a term used by the Federal [[Child Support Guidelines]] to describe a kind of joint custody situation in which the children spend an equal or almost equal amount of time with each parent. Where parents have shared custody, the children will usually spend a certain amount of time with one parent at that home and a similar amount of time with the other parent at their home. Shared custody can require that the children switch homes every three or four days, every other week, every two weeks, or every month; the amount of time the children spend with each parent will depend on the circumstances of each case, the age of the children, the parents' work schedules, and the schedules of the children's activities.

In many ways, this is an ideal form of custody since the children spend an equal amount of time with each parent, and have an equal opportunity to bond with each parent. Shared custody usually requires that:

*the parents live fairly close to one another,
*the parents have adequate communication skills with one another,
*both parents are able to put the children's needs ahead of their own,
*the children are old enough to be able to tolerate the disruption of living in two different homes, and
*the arrangement is in the best interests of the children.

Of course, there are downsides to this sort of order. The strain of communicating so frequently with the other spouse can be a bit of a burden; it can be costly to maintain a full set of clothing, shoes, toiletries and supplies at each house; and, no matter what, the children are still moving from one house to another each week.

===Split custody===

Split custody is a term used by the Federal [[Child Support Guidelines]] to describe a kind of parenting situation in which one or more of the children live with mostly with each parent. The parents may have sole custody of the children in their care or they may have joint custody of all of the children, regardless of where the children live.

This is a fairly unusual order as it requires the separation of siblings and there is a risk that they may grow apart from each other as time passes. These sorts of orders are only made where there is clear evidence that it is in the best interests of all of the children to fracture the family unit, such as when the siblings are constantly fighting or at each other's throats, or when one child has a particular attachment to a parent not wholly shared by the other children. In such cases, a needs of the child assessment, prepared under s. 211 of the ''[[Family Law Act]]'', confirming that the children should be split apart is essential.

==Types of access order==

Orders for access are either of two types of order: interim orders and final orders. ''Interim orders'' are made before trial, and ''final orders'' are made either by a judge after trial or with the agreement of the parents without a trial.

===Interim orders===

The section on [[Interim Applications in Family Matters]] in the chapter [[Resolving Family Law Problems in Court]] discusses interim orders more fully. Interim orders are intended to be a sort of rough-and-ready solution to the legal problems spouses face after they have separated, and are really only meant to last until a final decision is made following trial or a settlement of the action. Interim orders are short-term solutions intended to deal with the immediate problems about where a child will live and the role each spouse will play in raising the child. Interim access will be decided after a decision has been made about the child's primary residence.

While an interim order will be made based on the same considerations that apply to final orders, a lot of weight is usually given to the status quo — the parenting arrangements in place at the time the application for the interim order is made — in order to minimize the amount of disruption the child has to deal with while the spouses' legal issues wind their way through the court system.

However, the wrongful conduct of spouse will not establish a status quo that the court will respect. If a parent is seeing a child too little or if the other parent is withholding access, the court will act on an interim basis to expand the time the parent has with the child; if a parent has taken off with the child, a court may order the parent and child to return.

===Specified and unspecified access===

Every order for access, whether interim or final, will say that a spouse will have either a set schedule of time with the child or something much more ambiguous that really isn't a schedule at all. Some orders will provide for both a set schedule of access and "such other access as the parties may agree."

Unspecified access is usually described as "liberal and generous access" in orders and family agreements. This sort of access is appropriate where the spouses can communicate with each other reasonably well and each is prepared to accommodate the other. Where there is any tension between the spouses relating to the children, such an order may not be appropriate, particularly if there is a chance that one parent will withhold the child from the other. In fact, it may be a recipe for disaster.

Specified access is probably the more common kind of access. Specified access orders state at what times and dates a spouse will have the child. These orders can be quite complex, dividing holidays, birthdays, Mothers' Day and Fathers' Day, special school days, and so on. Specified access orders can encompass pretty much every kind of arrangement that you can think of, or be limited and general. A typical specified access order might provide that a spouse will see the child every other weekend, from a certain time on a certain day until a certain time on another day, on a couple of weeknights between certain times, and on certain holidays in alternating years.

In general, the more difficult the spouses' relationship is following separation, the more likely it is that the order will specify the access schedule on very detailed terms. Some people just need a set of rules to live by.

A chart showing a number of different parenting schedules is available in the section [[Parenting after Separation]].

===Conditional access===

A spouse's access to their child can be made conditional upon the parent doing or not doing something. If a parent fails to meet any of the conditions on which they may have access to the child, the parent's access to the child may reasonably be denied.

In general, the court must have some fairly serious concerns about a parent's lifestyle or behaviour before an access order will be conditional. Conditional access orders have been made in cases such as the following:

*a parent was a heavy smoker (the condition being not to expose the child to second-hand smoke),
*a parent used drugs or alcohol (not to use drugs or alcohol while with the child and for a period of 24 hours before access), and
*a parent was a dangerous driver (not to drive with the child in the car).

In theory, access can be made conditional for pretty much any kind of genuinely bad behaviour on the part of a parent that poses an actual risk to the child.

===Supervised access===

Access may be restricted where there is a concern that the visits may result in harm to the child. In extreme cases, the court may require that a spouse's access be supervised by a third party. Such supervision may be by a grandparent, another relative, or by a person who specializes in supervising access. There are even companies that provide supervised access services.

The courts are generally reluctant to require supervision as a condition of a spouse seeing a child, but they will do so where:

*there has been a history of child abduction or attempts to abduct the child,
*there is a history of abuse against the child or the other parent,
*the parent has attempted to poison or alienate the child against the other parent or otherwise interfere with the child's relationship with the other parent, or
*there are serious concerns about the parent's ability to properly care for the child (this may include the parent having a mental or physical illness).

In general, supervised access is intended to be a short-term solution to a problem, rather than a permanent condition of access. Remember that it is up to the spouse who says someone's access should be supervised to prove why it should be supervised.

===Interplay Between the ''Divorce Act'' and the ''Family Law Act''===

Section 16(1) of the ''Divorce Act'' contains the "maximum contact" principle with respect to each parent's access to a child.

Section 40(4) of the ''Family Law Act'' specifically sets out that "...no particular arrangement is presumed to be in the best interests of the child..."

Even if your matter is proceeding under the ''Divorce Act'', the British Columbia Supreme Court in a case called [https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc925/2016bcsc925.html?resultIndex=1 ''D.M.L. v. D.B.L''] confirmed that the maximum contact principle is not absolute, and that the court will only give effect to the maximum contact principle to the extent that it is consistent with the best interests of the child. Moreover, in determining what is in the best interests of a child, the court can consider the factors listed in s. 37(2) of the ''Family Law Act.''



==Resources and links==

===Legislation===

* ''[[Divorce Act]]''

===Resources===

* [[Media:Custody_-_Joyce_Model.pdf|The Joyce model for joint custody]] (PDF)
* [[Media:Custody_-_Horn_Model.pdf|The Horn model for joint custody]] (PDF)

===Links===

* [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/pas Justice Education Society: Parenting After Separation program - for BC]
* [http://www.justiceeducation.ca/programs/online-parenting-after-separation Justice Education Society: Parenting After Separation program - for Vancouver]
* [http://clicklaw.bc.ca/resource/1246 Canadian Bar Association BC Branch: Custody and access, guardianship, parenting arrangements and contact]
* [http://clicklaw.bc.ca/resource/1608 Legal Services Society's Family Law Website: Access]
* [http://clicklaw.bc.ca/resource/1891 Legal Services Society's Family Law Website: Custody]
* [http://clicklaw.bc.ca/question/commonquestion/1007 Clicklaw Common Question: We can’t agree about who the children should live with]

{{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]], April 15, 2019}}

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[[Category:JP Boyd on Family Law]]

Guardianship, Parenting Arrangements and Contact

2019-04-15T23:26:16Z

Samantha Rapoport: Mary and I have comprehensively reviewed

{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
|ChapterEditors = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]]
}}

Guardianship is a very old concept that goes back to the law of ancient Rome. Although guardianship can be hard to define, it's probably easiest to think of guardianship as the full bundle of rights and duties involved in caring for and raising a child. Historically, guardianship had two aspects: guardianship of the ''person'' and guardianship of the ''estate.'' Guardianship is still about parental authority. Parents can be, and usually are, the guardians of a child. Other people can be guardians too, including grandparents and stepparents, and the people who are made guardians by a guardian's will.

This section talks about who is presumed to be the guardian of a child, how people can apply to be appointed as the guardian of a child, and how people can become a guardian upon the death of a guardian. It also talks about the rights and obligations involved in being a guardian, parental responsibilities and parenting time, and about contact, which is the time that someone who isn't a guardian may have with a child.

==Introduction==

The provincial ''[[Family Law Act]]'' talks about the care of children in terms of ''guardians'' and the rights and duties they have for the children in their care. Most of the time a child's parents will be the child's guardians, but other people can be guardians too, including people who have a court order appointing them as guardians and people who are made guardians by a guardian's will.

Guardians raise the children in their care by exercising ''parental responsibilities'' in the best interests of the children. Parental responsibilities include deciding where a child goes to school, how a sick child is treated, whether a child is raised in a religion, and what sports the child plays after school. All of a child's guardians can exercise all parental responsibilities, or parental responsibilities can be divided between guardians, so that only one or more guardians have the right to make decisions about a particular issue. The concept ''joint guardianship'' is not incorporated into the ''Family Law Act''; however many people, including judges, still use that language in error.

The time a guardian has with a child is called ''parenting time''. During parenting time, a guardian is responsible for the care of the child and has decision-making authority about day-to-day issues.

People who are not guardians, including parents who are not guardians, do not have parental responsibilities. Their time with a child is called ''contact''. A person who is not a guardian does not have decision-making authority when the child is in their care.

==Being a guardian and becoming a guardian==

Section 39 of the ''[[Family Law Act]]'' sets out the basic rules about who is presumed to be a guardian:

<blockquote><tt>(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.</tt></blockquote>
<blockquote><tt>(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child's guardian.</tt></blockquote>
<blockquote><tt>(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies:</tt></blockquote>
<blockquote><blockquote><tt>(a) section 30 applies and the person is a parent under that section;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the parent regularly cares for the child.</tt></blockquote></blockquote>

Putting this another way, under s. 39(1), parents who lived together for some period of time after their child was born (birth is when you become a parent) are presumed to be the guardians of their child during their relationship and after they separate.

Parents who didn't live together, on the other hand, aren't guardians unless:
*they are parents because of an assisted reproduction agreement,
*the parent and all of the child's guardians made an agreement that the parent would be a guardian, or,
*the parent ''regularly cares'' for the child.

This chapter will discuss what regularly cares for actually means.

People who aren't guardians by the operation of section 39 of the ''Family Law Act'', including parents who aren't guardians, don't have the right to say how a child is raised or be involved in decision-making about the child. If a guardian plans on moving with the child, people who aren't guardians don't have the right to object. However, a person with an order for contact time must be notified of any proposed relocation(per section 66 of the ''Family Law Act'') and can apply for orders for the purpose of maintaining the relationship if the relocation is permitted (per section 67(2)(b) of the ''Family Law Act'').

Being a guardian means that you, along with any other guardians, have the obligation to make decisions on behalf of a child and the right to determine how the child is raised. Guardians are presumed to be entitled to manage children's property worth less than $10,000. A guardian can object if another guardian wants to move, with the child or without, and a guardian can make another person a guardian of the child in their will.

Most of the time, a parent will want to be a guardian of their child.

===Being a guardian===

People who are guardians by the operation of s. 39 of the ''[[Family Law Act]]'', for example, if they are the child's parents who have lived together after the child is born, or a parent who has regularly cared for a child after the child's birth, don't need to obtain a court order or declaration stating that they are guardians. At law, a parent guardian should not need to ask the court for what they already have. This is really important because if you don't need to start a court proceeding to become a guardian, you shouldn't.

That said, it's unlikely that too many people are going to be aware of the presumptions of guardianship that s. 39 talks about, and you may have problems dealing with people like doctors, teachers, police and border guards if after separation, you do not have an order or agreement confirming that you are a guardian of your child (particularly if you do not share the last name of your child, or your name is not on the child's birth certificate).

Parents (generally fathers) who were not living with the other parent (generally the birth mother) at the time the child was born, but who believe that they are a guardian because they regularly care for their child will want some kind of confirmation that they are their child's guardian. This is when an agreement between the parents or a declaration by the court is useful. Obviously regular care is a matter of opinion, and if there is a disagreement, some kind of decision or declaration will need to be made saying whether or not the parent who claims guardianship is in fact a guardian. See, for example the decision, [https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc293/2018bcsc293.html?resultIndex=1'' Doyle v. Handley ''], where the court found the father to be a guardian of the child because the father regularly cared for child after the child was born, even though the father did not cohabit with child at time of the child's birth

===Becoming a guardian===

If you are not a guardian of a child and you want to become a guardian, your choices depend on your relationship to the child and the views of the child's other guardians:

*If you are a parent, you can become a guardian by an agreement with the child's guardians.
*If you are not a parent or if the other guardians aren't inclined to agree, you can only become a guardian by making an application to court to be made a guardian.
*You can also become a guardian, whether you're a parent or not, through a guardian's will or signed Form 2 Appointment when the guardian dies or becomes incapacitated.

If you are the new spouse or partner of a guardian of a child, you do ''not'' become a guardian of the child just because of your relationship with the guardian. If you would like to be the guardian of your stepchild, you should consider applying for an order appointing you as one of the child's guardians.

====Agreements====

If you are a parent, you can become a guardian under s. 39(3)(b) of the ''[[Family Law Act]]'' by making an agreement with all of the child's other guardians. If one of the child's guardians disagrees, you will have to apply to court to be made a guardian.

Guardians cannot make an agreement appointing anyone other than a parent as a guardian.

====Applying to court====

Parents and other people can apply to be made a guardian under s. 51 of the ''[[Family Law Act]]''. This section requires a person applying for guardianship, an ''applicant'', to provide certain information about why the order would be in the best interests of the child.

In the Provincial Court, Rule 18.1 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] requires the applicant to provide a special affidavit in Form 34, sworn no more than seven days before it is filed in court, which talks about:

* the applicant's relationship with the child,
* the child's current living arrangements,
*the applicant's plan for the parenting of the child,
*any incidents of family violence that might affect the child, and
*the applicant's involvement with other court proceedings involving children under the ''Family Law Act'', the old ''Family Relations Act'', the ''[http://canlii.ca/t/51znt Child, Family and Community Service Act]'' and the ''[[Divorce Act]]''.

Rule 18.1 also requires that the applicant supply a criminal records check and a records check from the Ministry for Children and Family Development dated within 60 days of the filing of the affidavit.

Rule 15-2.1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] says much the same thing and also requires that a special affidavit, in Form F101, be sworn at least 28 days before a hearing where people will present arguments, or at least seven days before filing if there will not be a hearing. The records checks must be done no more than 60 days before the date of the hearing.

You can find links to and examples of forms, including Form 34 and Form F101, in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]] and [[Sample Supreme Court Forms (Family)|Supreme Court Forms & Examples]].

====Appointment by will or Form 2 Appointment====

Parents and other people can also be made a guardian if they have been appointed by a guardian as a ''standby guardian'' under s. 55 of the ''[[Family Law Act]]'' or as a ''testamentary guardian'' under s. 53 of the act. Guardians who have been appointed in this way don't need to make an application under s. 51 and don't need to worry about filing the special affidavit or getting records checks done.

Standby guardians are appointed when the appointing guardian completes an Appointment in Form 2 of the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Testamentary guardians can be appointed through Form 2 or in the appointing guardian's will. This is discussed in more detail below, in the discussion about the incapacity and death of a guardian.

==Parental responsibilities and parenting time==

People who are the guardians of a child have ''parental responsibilities'' for that child and their time with the child is called ''parenting time''. Together, parental responsibilities and parenting time are known as ''parenting arrangements''. Section 40 of the ''[[Family Law Act]]'' talks about who has parental responsibilities and parenting time and how they are shared:

<blockquote><tt>(1) Only a guardian may have parental responsibilities and parenting time with respect to a child.</tt></blockquote>
<blockquote><tt>(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances.</tt></blockquote>
<blockquote><tt>(3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by</tt></blockquote>
<blockquote><blockquote><tt>(a) one or more guardians only, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) each guardian acting separately or all guardians acting together.</tt></blockquote></blockquote>
<blockquote><tt>(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:</tt></blockquote>
<blockquote><blockquote><tt>(a) that parental responsibilities should be allocated equally among guardians;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that parenting time should be shared equally among guardians;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) that decisions among guardians should be made separately or together.</tt></blockquote></blockquote>

This section says a few important things.

First, guardians are presumed to exercise all parental responsibilities until an order or agreement says otherwise, and guardians are required to consult with each other in the exercise of these responsibilities.

Second, if you do have an order or agreement, the order or agreement can require guardians to share certain parental responsibilities or divide them so that a particular responsibility will only be exercised by one or more guardians acting on their own.

Third, the court must not make any assumptions about how parental responsibilities and parenting time are to be divided.

Parental responsibilities are listed at s. 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;</tt></blockquote>
<blockquote><tt>(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

This list is not a closed list. If there's something important to the child that's not listed in (a) to (k), you can probably have the issue addressed under (l). Note also that guardians are required, under s. 43(1), to always exercise their parental responsibilities in the best interests of the child.

The above list references the ''Infants Act'', which is a piece of provincial legislation that deals with, among other matters, the consent of a “mature minor” for healthcare decision-making. Parents who are separating and looking to define parental responsibilities in a parenting plan should nevertheless be aware that if their child is considered a mature minor, that child may be able to make his or her own healthcare decisions.

The above list also references the parental responsibility of “requesting and receiving from third parties health, education or other information respecting the child.” Parents who are separating and looking to define parental responsibilities in a parenting plan should also consider the reasonable expectation of privacy of a mature minor over his or her healthcare information.

The ''[[Family Law Act]]'' deals with parenting time very briefly. Section 42 says this:

<blockquote><tt>(1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order.</tt></blockquote>
<blockquote><tt>(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.</tt></blockquote>

Basically, you have a few choices if it becomes important to formalize the parenting arrangements for a child. You can come up with an agreement with the other guardians, by negotiation, mediation, or a collaborative settlement process, or, if you can't agree, you can go to court or you can elect to use family law arbitration, to obtain a decision from a third party. Arbitration, like mediation, is an elective process. However, unlike mediation, in arbitration is the parties cannot agree, the arbitrator will make a final and binding decision.

It sometimes takes a while for guardians to get to the point where they feel they must get something formal in place. Sometimes, people are just content with the status quo. In cases like this, where a stable parenting arrangement has managed to gel over time, s. 48 of the ''Family Law Act'' says that a guardian shouldn't make unilateral changes to those arrangements without talking to the other guardians first:

<blockquote><tt>(1) If</tt></blockquote>
<blockquote><blockquote><tt>(a) no agreement or order respecting parenting arrangements applies in respect of a child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's guardians have had in place informal parenting arrangements for a period of time sufficient for those parenting arrangements to have been established as a normal part of that child's routine,</tt></blockquote></blockquote>
<blockquote><tt>a child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to those arrangements, unless consultation would be unreasonable or inappropriate in the circumstances.</tt></blockquote>
<blockquote><tt>(2) Nothing in subsection (1) prevents a child's guardian from seeking</tt></blockquote>
<blockquote><blockquote><tt>(a) an agreement respecting parenting arrangements, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) an order under section 45.</tt></blockquote></blockquote>

When formal arrangements are required, s. 44 of the ''Family Law Act'' allows two or more of a child's guardians to make an agreement about the allocation of parental responsibilities and parenting time, as well as how disputes about those parenting arrangement will be resolved. (Agreements like these can't be made until the guardians have separated or are about to separate.) If agreement is impossible, a guardian can apply for a court order about parenting arrangements under s. 45 of the Act.

When a child has more than one guardian, the guardians need to work together and cooperate in raising the child. This can sometimes be difficult, particularly when there is a lot of conflict in the guardians' relationship with one another. Before the ''Family Law Act'' came into effect, the rights and obligations involved in raising children were usually addressed through a joint guardianship order under the ''Family Relations Act''. The ''Family Law Act'' doesn't talk about guardianship the way the old law did and can't be used to spell out guardians' rights and obligations.

The court can make orders about which guardian exercises parental responsibilities, so that one parent may have parental responsibilities over medical decisions, and the other over educational decisions. If the agreement or court order does not spell out who exercises which parental responsibility, then it is presumed that the guardians share all of the parental responsibilities and the guardians must therefore cooperate and make their decisions jointly. If no agreement can be reached by the guardians, an application may be made to court under s. 40 of the ''Family Law Act'', and the court can make those decisions instead or determine who can make the decision.

==Contact==

The time a person who is not a guardian has with a child is called ''contact''. Where a child's parent is not that child's guardian, the time that the parent spends with the child will be considered contact time. The ''[[Family Law Act]]'' doesn't say much about contact, except to say that anyone can apply for it, including parents and grandparents. This is the definition of contact from s. 1 of the Act:

<blockquote><tt>'''contact with a child''' or '''contact with the child''' means contact between a child and a person, other than the child's guardian, the terms of which are set out in an agreement or order</tt></blockquote>

A schedule of contact can be set by agreement between the person seeking contact with a child and the child's guardians under s. 58 of the ''[[Family Law Act]]'', or a schedule of contact can be fixed by a court order made under s. 59. Agreements for contact are only good if they are signed by all of the child's guardians who have the parental responsibility of determining who can have contact with the child.

==Incapacity and death of a guardian==

When a guardian anticipates being unable to care for a child, either temporarily or permanently, the guardian may appoint a person to act in their place. No matter the age or health of a guardian, it is always a good idea for a guardian to give some thought to the question of who would look after the child in the event of the guardian's unexpected death and to record those arrangements in a Will or in one of the forms described below.

===Temporary authorizations===

Under s. 43(2) of the ''[[Family Law Act]]'', a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on their behalf. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.

The parental responsibilities that someone can exercise under a written authorization are:

*making day-to-day decisions affecting the child and having day-to-day care, control, and supervision of the child,
*making decisions respecting with whom the child will live and associate,
*making decisions respecting the child's education and participation in extracurricular activities,
*giving, refusing, or withdrawing consent to medical, dental and other health-related treatments for the child,
*applying for a passport, licence or permit for the child,
*giving, refusing or withdrawing consent for the child, if consent is required,
*receiving and responding to any notice that a parent or guardian is entitled or required by law to receive, and
*requesting and receiving from third-parties health, education, or other information about the child.

Authorizations like these are mostly used: when the child has to go somewhere else to attend school and the guardian needs to ensure the child is looked after; when the guardian is seriously ill but going to recover; and when the guardian is going to be out of commission for a while to recover from a surgery or treatment.

===Appointing standby guardians===

Under s. 55 of the ''[[Family Law Act]]'', where a guardian is facing a terminal illness or permanent loss of mental capacity, the guardian can appoint someone to become guardian when they become incapable of continuing to act as guardian.

Appointments are made by Form 2, a form set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. The guardian must sign the form in the presence of two witnesses, neither of whom is the guardian being appointed. The form must state the conditions that have to be met for the appointment to take effect, such as a doctor's certificate of incapacity. A guardian cannot appoint a guardian to act with any more parental responsibilities than those they had at the time of the appointment.

For the appointment to be effective, a person appointed as a standby guardian must accept the appointment.

A person who is appointed as a standby guardian does not have to apply for appointment under s. 51 of the act, and continues to serve as the guardian of the child after the death of the appointing guardian.

===Appointing testamentary guardians===

Under s. 53 of the ''[[Family Law Act]]'', a guardian can appoint someone to become guardian when they die.

Appointments are made either by Form 2 or in the guardian's will. For appointments made using Form 2, the guardian must sign the form in the presence of two witnesses, neither of whom is the guardian being appointed. A guardian cannot appoint a guardian to act with any more parental responsibilities than those they had at the time of the appointment.

A person appointed as a testamentary guardian must accept the appointment for the appointment to be effective.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/85pb Provincial Court (Family) Rules]
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]

===Links===

* [http://www.justiceeducation.ca/programs/online-parenting-after-separation Justice Education Society: Parenting After Separation program]
* [http://clicklaw.bc.ca/resource/1246 Canadian Bar Association BC Branch: Custody and access, guardianship, parenting arrangements and contact]
* [http://clicklaw.bc.ca/resource/2639 Legal Services Society Fact Sheet: How to become a child's guardian]
* [http://clicklaw.bc.ca/resource/1631 Legal Services Society's Family Law Website: Guardianship, parenting time and parental responsibilities]

{{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]], April 15, 2019}}

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[[Category:JP Boyd on Family Law]]

Parenting Apart

2019-04-15T22:54:34Z

Samantha Rapoport: Mary and I have reviewed and comprehensively edited this page for accuracy as of April 15, 2019. Please confirm that links are working properly.

{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
|ChapterEditors = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]]
}}
{{Clicklawbadge
| resourcetype = resources for parents who are separating, including information about the
| link = [https://www.clicklaw.bc.ca/question/commonquestion/1010 Parenting After Separation program]
}}
{{LSSbadge
| resourcetype = a booklet that includes highlights of language changes between the ''Family Law Act'' and the ''Divorce Act'':
| link = [http://resources.lss.bc.ca/pdfs/pubs/Guide-to-the-New-BC-Family-Law-Act-eng.pdf Guide to the BC Family Law Act]
}}This section is all about putting your children first. It provides a brief introduction to parenting after separation and looks at different types of parenting issues, including parenting schedules and parenting plans. It also provides a selection of related parenting resources and reading materials.

While the other sections in this chapter discuss the legal issues involved in determining how children will be cared for after a couple separate, they do not talk about the non-legal issues. This section will discuss issues such as: what it means to parent after separation, how separation affects children, and how parents can talk to their children about their separation.

==Introduction==

If you've got children and you've separated from your partner, you have three things to consider.

First, you've got to get a grip on all the emotional baggage that comes along with the end of a relationship. Second, you've got a pile of legal issues you have to sort through. Finally, but most importantly, you and your former partner have to develop a strategy for parenting your children after the relationship ends.

No matter how pressing the first two issues are, you must remember that the post-separation parenting of your children must take priority over everything else. If you think the end of your relationship is difficult for you, imagine how confusing and unsettling it must be for your children. Their needs and best interests must come ahead of your own, and those of your partner. This is certainly the view that the court will take.

You may have found that during your relationship, issues involving the care of your children just sort of worked themselves out, perhaps smoothly, perhaps not. In general, you will have developed a routine, a routine that you and your partner were comfortable with and one that your children have become accustomed to.

After separation, that routine just may not be possible anymore, especially if you and your partner are living in separate homes. Suddenly, the children can no longer rely on both of you being around the house, or on the schedules you used to keep. They can no longer count on all the little things like the bedtime story from dad, the special breakfast, playing catch after school with mum, and so forth. On top of all that change and uncertainty, the children will be fully aware that something isn't right between their parents, even if they don't quite grasp exactly what's going on.

Separation can also see parents changing their roles. A parent who has not been as involved may become more involved. This can be challenging for some parents and what must be kept in mind is that children all people in their lives to be doing their best. A more involved parent is almost always something that helps children. What harms children is conflict; conflict in intact and restructured families.

While this may sound a little preachy, the fact is that no matter how adults are able to rationalize the consequences of the end of their relationship, children can't. Your job, regardless of your own emotional and legal entanglements, is to protect your children from your dispute as much as possible, and to develop a parenting regime that will be in the best interests of your children.

===Language===

The words we use often shape how we see the world around us. There's a big difference, for example, between saying "Pat lied to me about ..." and "Pat was mistaken when he told me that ..." In the same way, there's a difference between saying "Tuesday is my access day" and "Tuesday is when I visit with Moesha."

Over the past ten years or so, the courts and policy makers have become increasingly sensitive to how the words used to describe a parent's involvement with their child can impact on both the child's and the parent's perception of that relationship. As a result, shared parenting is becoming increasingly the standard, even in situations where, twenty years ago, Parent A would be described as the "access parent" and Parent B would be described as the "custodial parent." The phrase "access parent" can often lead to a sense, shared by everyone, including the children, that this parent is somehow a lesser parent, has less of a role to play, or is less important to their child's life. It also encourages the idea that there are "winning parents" and "losing parents" when it comes time to determining the parenting arrangements for a child.

Words like "custody" and "access," are still used in the federal ''[[Divorce Act]]''. As noted above, these can be loaded terms with a lot of extra meanings that aren't particularly helpful to the children, or to each parent's view of their role with the children. This is one reason why the newer provincial ''[[Family Law Act]]'' talks about the care of children in terms of guardians who exercise ''parental responsibilities'' and have ''parenting time'' with their children, and people who are not guardians who have ''contact'' with a child. This is a huge improvement, and the language of the ''[[Family Law Act]]'' should be used whenever possible.

===A few notes from JP Boyd===

I am not a psychologist, a psychiatrist or a counsellor. As a result this section should be read with a grain of salt, as it is based on my observations of my clients' experiences and a healthy dose of common sense. For the same reason you are cautioned that this section should not be used as an authority on parenting. The goal of this section is simply to provide some information that may be helpful for parents to consider as they approach the issue of parenting after separation.

There are a ton of [http://www.clicklaw.bc.ca/question/commonquestion/1010 Parenting After Separation (PAS) programs] conducted by trained psychologists and counsellors available throughout British Columbia. If you are separating or have separated, I highly recommend that you attend one of these programs. No matter how good (or bad!) you think your relationship is with your ex-partner, these programs are usually very helpful. Also, in some cases, you, your former partner, or both of you may be ordered by the court to attend a Parenting After Separation program.

==Parenting after separation==

Some psychologists and many separating parents believe that the best post-separation parenting arrangement is one of equal or near-equal (i.e. shared) time.

The ''Family Law Act'' specifically dismisses this perspective.

Section 40 (4) reads:

<blockquote><tt>In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:</tt></blockquote>

<blockquote><blockquote><tt>(a) that parental responsibilities should be allocated equally among guardians;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that parenting time should be shared equally among guardians;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) that decisions among guardians should be made separately or together.</tt></blockquote></blockquote>

Children need their parents to continue to contribute to their care and upbringing after separation. Further, children have the right to expect their parents and caregivers to work together, whenever possible, to ensure that their needs are met.

While many families work well with a week on/week off schedule or other shared parenting arrangements, the ''Family Law Act'' rejects the notion that parents should have the right to, or the expectation of, an equal, or near-equal, amount of time with their children before or after separation, as set out in s. 40(4) of the ''Family Law Act.''

Not all parents can separate in a civil manner, and not all parents share an equal interest or ability to in participate in the lives and parenting of their children. Some parents may be quite content to walk away and start a new life; others are painfully torn by the conflict between their former partner and their role as a parent. However, in the absence of some serious problem (such as abuse, alcoholism, or pedophilia) that renders a parent unfit to play a meaningful role in their child's life, the practical reality of parenting after separation is this: it is almost always in a child's best interests to grow up with two parents, with as strong a bond with both parents as possible, and to spend as much time with both parents as possible.

===Parenting tips===

Divorce or separation doesn't mess kids up — conflict does. Conflict in intact families and separated families is bad for children.

Community Mediation Ottawa, formerly the Ottawa Center for Family and Community Mediation, offers the following parenting dos and don'ts.

'''Things to think about:'''

*Children can best deal with their feelings surrounding the separation experience in a climate of cooperation.
*Working together as parents means cooperating with the other parent about raising the children. If you can't do this in person, try communicating by phone or by using notes that are exchanged with the child.
*It is a myth that parents who did not get along as a couple cannot work together as parents. They can. It takes time and effort but parents can redefine the relationship from being a couple, to a more business-like relationship of being partners in the parenting of their children.
*Go directly to the other parent for information, an answer, or a solution to a problem. Do not allow the child to be in the middle, to act as a messenger, or act as a spy. If you cannot deal directly with the other parent, use another adult.
*Give the benefit of the doubt to the other parent’s motives.
*Do not let yourself get caught in any angry feelings the child may have towards the other parent. Encourage the children to speak about their difficulties with the other parent to the other parent; do not get caught in the middle. Do not let the children become caught in the middle.

'''Children may be harmed if they:'''

*are restricted or prevented from spending sufficient time with both parents,
*are told that one parent is good and the other is bad,
*are encouraged to take sides, or
*don't feel free to love both parents and also stepparents.

'''Parents may harm their children if they:'''

*don’t prepare children for changes that will occur,
*burden children with adult problems, such as their legal issues or financial woes,
*compete with or criticize the other parent in front of the children,
*badmouth or blame the other parent in the children’s presence or earshot, or
*expect children to comfort them.

In short, you are the parent, and your children have the right to expect you to do the job of parenting.
===Parenting schedules===

While there is an assumption that equal or near-equal shared time is generally considered the best parenting arrangement possible, this is not and and it is not the law in British Columbia. Section 40 (4) of the ''Family Law Act reads'':

:(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:

::(a) that parental responsibilities should be allocated equally among guardians;

::(b) that parenting time should be shared equally among guardians;

::(c) that decisions among guardians should be made separately or together.

Shared parenting is not necessary equal parenting and what children need is for their parents or guardians to cooperate as much as possible, focusing on what the children need. Some things to be considered when you are developing a parenting schedule are: the child's age, relationships, and each parent's parenting skills and abilities.

Very young children, especially breastfeeding children, require more constant attention and are not able to be away from one parent (generally the breastfeeding mother) for long periods of time. In situations like this, there may be very frequent but shorter periods of parenting time for the non-breastfeeding parent. This will change, of course, as the child grows older.

Not all parents have the time to devote to a shared parenting arrangement, and not all parents have the skills and resources to offer the children.

====Different Parenting Schedules====

The Langley Family Justice Center published an excellent pamphlet called "Suggested Visitation/Time-Sharing Skills" which they gave to their clients, drawn from Gary Neuman's book, ''[http://www.worldcat.org/title/helping-your-kids-cope-with-divorce-the-sandcastles-way/oclc/42193621 Helping your Kids Cope with Divorce the Sandcastles Way]''. The following is adapted from this pamphlet, and is intended for parents who do not intend to establish an equal time-sharing arrangement.

::{| width="65%" class="wikitable"

!style="width: 11%" align="center"|Age

!style="width: 18%" align="center"|Basic Recommended Time

!style="width: 18%" align="center"|Limited Parenting Skills

!style="width: 18%" align="center"|Good Parenting Skills

|-

|align="center"|'''Birth to 8 months'''||valign="top"|2 or 3 weekly visits for 2 to 3 hours each||valign="top"|supervised visits in the primary parent's home||valign="top"|2 weekly visits for 6 to 8 hours each, plus one shorter visit

|-

|align="center"|'''9 to 12 months'''||valign="top"|2 or 3 weekly visits for 4 to 8 hours each, plus one longer weekend visit||valign="top"|2 to 4 weekly visits for 3 hours each||valign="top"|2 or 3 weekly visits for 6 to 8 hours each, plus one weekly 24-hour overnight visit

|-

|align="center"|'''13 months to 3 years'''||valign="top"|1 or 2 weekly visits for 6 to 8 hours each, plus one weekly 24-hour overnight visit||valign="top"|1 or 2 weekly visits for 4 to 6 hours each, and possibly one weekly short overnight visit||valign="top"|2 weekly 24-hour overnight visits that are not consecutive, plus one weekly visit for 6 to 8 hours, and a less than equal sharing of holidays

|-

|align="center"|'''4 to 5 years'''||valign="top"|1 or 2 weekly visits for 6 to 8 hours each, plus one weekly 24-hour overnight visit||valign="top"|1 or 2 weekly visits for 4 to 6 hours each, and possibly one weekly short overnight visit||valign="top"|2 weekly 24-hour overnight visits that are not consecutive, plus one weekly visit for 6 to 8 hours, and a greater sharing of holidays

|-

|align="center"|'''6 to 8 years'''||valign="top"|every other weekend, from Friday after school until Sunday evening, plus one weeknight after school until one hour before bedtime, plus 3 consecutive weeks during the summer holiday, and half of all other holidays||valign="top"|one weekly 24-hour overnight visit, plus one weeknight after school until one hour before bedtime, plus 3 two-day visits during the summer||valign="top"|every other weekend, from Friday after school until Sunday evening, plus one weeknight after school until one hour before bedtime, plus 3 consecutive weeks during the summer holiday, and half of all other holidays

|-

|align="center"|'''9 to 12 years'''||valign="top"|every other weekend, from Friday after school until Sunday evening, plus one weeknight after school until one hour before bedtime, plus 3 consecutive weeks during the summer holiday, and half of all other holidays||valign="top"|every other weekend, Saturday morning until Sunday evening, plus one weeknight after school until one hour before bedtime, plus 3 three-day visits during the summer||valign="top"|every other weekend, from Thursday after school until Monday morning before school, plus one weeknight after school until one hour before bedtime, plus half of all holidays

|-

|align="center"|'''13 to 18 years'''||valign="top"|every other weekend, from Friday after school until Sunday evening, plus one weeknight after school until one hour before bedtime, plus 3 consecutive weeks during the summer holiday, and half of all other holidays||valign="top"|every other weekend, Saturday morning until Sunday evening, plus one weeknight after school until one hour before bedtime, plus summer visits set in consultation with the child||valign="top"|every other weekend, from Thursday after school until Monday morning before school, plus half of all holidays

|}

====Shared Schedule====

In a shared parenting schedule, the time that a very, very young child, less than 18 months of age, requires to integrate fully with the other parent can be compressed.

Some children may be able to start spending a shared amount of time with each parent by the time they enter kindergarten, although the weeks should be divided so that the change in home is more frequent.

By grade two or three, many children may be able to do a whole week with one parent, followed by a whole week with the other parent. Most parents exchange the child on Fridays after school to minimize disruption to the child's schoolwork, although exchanging on Tuesday prevents any arguments about who was responsible for ensuring that weekend homework got done.

By the time the child is in their early teens, the week-on/week-off arrangement may be extended to two weeks with each parent. This will change as the teenager gets older, and their preferences should be taken into account. Some parents even wind up working on a month-on/month-off arrangement with older teens; again, though, this will depend on the child and the parents.

There are some parents who achieve shared parenting by the unequal sharing of holidays.

The ''Family Law Act'' also requires that parents, guardians and the court consider the child’s views, “unless it would be inappropriate to consider them” (section 37(2)(b)). Many parents and guardians know what their children want and need; however, children have a legal right to have a voice.

The Hear the Child Society http://hearthechild.ca/ offers useful information about the rights of children and a roster of people who prepare non-evaluative reports of children’s views.

===Parenting plans===

A ''parenting plan'' is a written agreement that describes how issues involving the care of children will be handled, typically with a long-term view that addresses how visitation and other arrangements should evolve as the children grow up and mature. Parenting plans are most common when the children are very young when their parents separate, or when parents need extra clarity.

The main reasons why parents might want to make a parenting plan are to address future issues ahead of time and to minimize the likelihood of future conflict. A parenting plan takes the basic developmental points in the children's life into consideration:

*The parenting schedule appropriate for a breastfeeding one-year-old won't be appropriate when the child is weaned.
*The parenting schedule that works for a three-year-old won't work when the child turns five, enters the school system, and is suddenly tied to a schedule neither parent controls.
*The schedule of a seven-year-old must accommodate sports and other extracurricular activities as well as homework and other take-home assignments.
*Nine-year-olds will be starting to go to day camps or overnight camps during the summer.
*The schedule of a twelve-year-old must take into account their social schedule and activities with friends.

In other words, a parenting schedule can't be static; it has to be able to evolve with time. This is precisely what a parenting plan is intended to address.

Parenting plans also typically address guardianship issues and cover how the parents will make decisions about the children's care, medical needs, and schooling. Since parenting plans aren't mentioned in the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', there are no rules about what should and shouldn't be in a parenting plan. It's up to the parents to be as inclusive and creative as they want.

Parenting plans can be included in separation agreements, but not always, or in court orders. Usually, court orders contain a general statement about guardianship and parenting time. However, at times, especially when parents do not agree, the court can and will make very specific orders about the parenting arrangements, such as who is responsible for taking the children to the dentist and the sharing of birthdays, to name a few. Detailed orders are usually crafted to a particular family in an attempt by the court to cover as much of a child's day-to-day life as possible in the hopes of minimizing conflict between the parents.

Parenting plans can also stand on their own as a separate document.

What is crucial in developing a parenting plan is to have a plan that accommodates and meets the children's needs and is not simply in place for the ease or convenience of parents. The same parenting plan may not work for all children in a family, and the goal of all parents should be to support the healthy developments of children as individuals and not simply as a sibling group.

===Sample parenting plans===

A lot of users of this resource have asked about sample parenting plans. I can't post an example of a parenting plan or separation agreement of my own, as I always draft those from scratch to reflect the unique needs and circumstances of each client. I can, however, post the link to the federal Department of Justice's [https://canada.justice.gc.ca/eng/fl-df/parent/plan.html Parenting Plan Tool], and the following parenting plans that are drawn from the Idaho Benchbook, a creation of family law lawyers from the Idaho state bar and judiciary. Other parenting plans and parenting agreements can doubtless be found online.

*[http://fourthjudicialcourt.idaho.gov/pdf/FCS_sample1.doc Sample #1]: developed for a young child with a primary parent, frequent contact with the other parent but no overnight visitation and addresses safety and transportation issues
*[http://fourthjudicialcourt.idaho.gov/pdf/FCS_sample2.doc Sample #2]: developed with a primary parent, every other weekend visitation and addresses substance abuse issues
*[http://fourthjudicialcourt.idaho.gov/pdf/FCS_sample3.doc Sample #3]: developed as a 50/50 shared parenting plan and addresses extra-circular activities and summer vacations

Note three things about the Idaho plans:

#Much of the legal language in the Benchbook plan is suited to American law and won't be suitable for British Columbia parenting plans; you'll have to adapt the terminology accordingly.
#The plans refer to American subjects (like holidays and social security numbers) that you'll have to change or delete.
#The plans can be adapted to include visitation schedules that will evolve as the children grow up.

You might also want to have a look at the [http://www.in.gov/judiciary/rules/parenting/ Parenting Time Guidelines] found in the Indiana Rules of Court, which are extremely detailed and very child-focused.

For an example from British Columbia, see the Parenting After Separation Worksheet # 4 about creating a parenting plan: https://www2.gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/divorce/family/basics/help/p-a-s/pas-handbook.pdf.

There is also a do-it-yourself separation agreement kit on the Legal Services Society website, which contains some information about parenting plans: https://familylaw.lss.bc.ca/guides/separation/parenting.php

===Common visitation issues===

There are lots of stumbling blocks that can crop up in preparing a parenting schedule, and it can be very difficult to anticipate all the special days that you might want to address in addition to the week-to-week schedule. Most often, these special days are things like Mothers' Day or Fathers' Day, the children's birthdays and religious holidays.

Other problems can come up when the parenting schedule is ignored by a parent or refused by a child. Some solutions to issues like this are discussed below. More information can be found in other sections in this chapter, including the [[Estranged & Alienated Children]] section.

====Weekends====

Weekends can be especially important to schedule carefully, and it may be important that they be shared between parents, particularly if the children are going to school. Often the parent who has the children during the work week becomes the disciplinarian, since that parent has the burden of telling the kids to go to sleep on time, do their homework, and so forth. The other parent, on the other hand, becomes the "fun" parent, taking the kids to the park, to the movies, and buying them treats on the weekend.

It may be important that weekends be shared to avoid the children developing a discipline parent/fun parent dynamic. It is rarely a good idea to come up with a schedule that gives one parent all of the children's weekends, unless of course that is what your particular family needs and what will be in your children's best interests.

====Statutory holidays and Professional Development Days====

Make sure that statutory holidays and school professional development days are taken into account when you work out a parenting schedule. Many schedules that require a parent to return the child on Sunday evening, for example, allow that the child be returned on Monday evening if the Monday is a statutory holiday or professional development day at your child’s school.

====Special days====

When you're working out your parenting schedule, don't forget about special days like birthdays, Fathers' Day, Mothers' Day, religious holidays and so forth. Some (but not all) parents do things like alternating the children's birthdays, or making special arrangements for extra time on Fathers' Day and Mothers' Day.

For religious holidays, like Christmas, many parents work out a plan so that in even-numbered years, one parent will have the children from Christmas Eve to the afternoon of Christmas Day, and the other parent will have them from the afternoon on Christmas to the evening of Boxing Day, a schedule that reverses on odd-numbered years. Be creative about scheduling these sorts of special days. In the case of Passover, for example, some parents alternate the first and second nights each year.

====School holidays====

The main school holidays are the winter break (usually about two to two-and-a-half weeks), the spring break (a week or two weeks) and the summer holiday (slightly more than two months). These holidays can be split up, shared between parents every other year, or treated with the same schedule as if the child was in school.

Particularly during the school closures during the summer, both of the parents should have a fair chunk of time with the children. Summers don't have to be split equally — some people's work schedules just won't give them that much time off — but each parent should at least have a solid week with the children. During times like this, the usual parenting schedule is suspended so that each parent's holiday visits are uninterrupted.

For working parents, summer holidays may require cooperation (or not) regarding the scheduling of camps and day camps. Ideally, parents can arrange their holidays around the children's availability. However, not every parent has that flexibility. What parents need to keep in mind are the memories that they are creating for their children. Will their children remember summer holidays as being a tug-of-war between parents, or a time of relaxation and fun?

====Children's refusal to visit====

Children can be resistant to change and transitions can be difficult for them. Sometimes children will not want to leave one parent and this could be the result of many things, not necessarily a real desire not to see the other parent. Separation anxiety, misplaced loyalty or simply a reaction to all the changes a child may be facing can be common reasons for resistance to visits.

The ''[[Family Law Act]]'' confirms that when determining what parenting plan is in a child’s best interests, the court and the parties must consider the child’s “view, unless it would be inappropriate to consider them” (section 37(2)(b)).

There is no age provided in the ''[[Family Law Act]]'' as to when a child’s views are to determine their own parenting schedule. While people typically think the age of 12 is somehow a determining age for when children can make their own decisions on their own parenting schedule, the language of the ''[[Family Law Act]]'' does not specify any particular age when a child's views determine the parenting arrangements.

Generally, children should not be responsible for making their own parenting arrangements or be involved in negotiating that issue between their parents. If a child is saying that they does not want to see the other parent, then that is a factor the parents need to consider. A child’s voice must be heard; however, it is important to make the distinction between a child having a “voice” compared to a child making a “choice”.

A child’s interests are not necessarily served by limiting contact with one parent when a child requests it. It is important to know why a child is taking a resistant position and to address any underlying factors that may be affecting the child’s choice in the matter.

Private counselors and other resources, such as the [http://hearthechild.ca Hear the Child Society], which has a roster of reporters who prepare Hear the Child Reports. In addition to non-evaluative reports, people may wish to obtain a or Views of the Child Report, which can offer recommendations or insight as to why a child is behaving in a particular way. If a child is consistently refusing to see the other parent, then it is important to know why.

====Parents' refusal to visit====

Children need stability and consistency in their lives. It is disruptive to both them and the other parent when a parent misses a scheduled visit, cancels at the last minute, or just fails to show up at all. This is an absolute no-no. Both parents need to be able to rely on a fixed parenting schedule; this benefits the child by giving them a reliable routine, and it benefits both parents by allowing them to plan their life apart from the child. Some flexibility from both parents is a wonderful thing, but a situation where one parent is constantly backing out, cancelling, or changing dates is not good for anyone.

Under section 63 of the ''[[Family Law Act]]'' if a parent routinely fails to exercise parenting time or contact, then the other parent can apply to court to be reimbursed for the costs associated with the failure to exercise the scheduled time. In an application brought under this section, a Court may also order a parent or both parents to participate in family dispute resolution, have one or both parents and/or child attend counseling or specified services or programs or involve a supervisor for transfers of a child. Addressing missed visits is a process option that was not previously available to parents under the old legislation.

==Parenting resources==

There are quite a lot of public and community resources available to help parents deal with parenting issues, including issues arising while the parents are together. No matter what your circumstances are, if you are having problems, get help. Whether that help involves reading a book or a pamphlet, or going to a seminar, or meeting with a support group, your children are worth it.

===Programs and agencies===

The [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation program] is run by the provincial Ministry of Justice. It is the mandatory program required of parents by certain Provincial (Family) Courts, but is open to everyone. A list of the agencies that provide this service is available from the Family Justice division through [http://www.clicklaw.bc.ca/resource/2638 Clicklaw]. You can download the [http://clicklaw.bc.ca/resource/1527 Parenting After Separation program's handbook] online, in English, Chinese, Punjabi and French.

The Parenting After Separation program is offered in Cantonese and Mandarin in Surrey, Richmond and Vancouver, call 604-684-1628. The program is also offered in Punjabi and Hindi in those areas, call 604-597-0205.

Simon Fraser University offers [http://www.informationchildren.com/ Information Children], a fairly broad and extremely useful non-profit program that deals with parenting issues and includes mediation services. This program offers parenting workshops in New Westminster and Burnaby, and has a handy parenting helpline. Contact Information Children through their [http://www.informationchildren.com/ website] or at:

<blockquote>604-291-3548 phone 
604-291-5846 fax</blockquote>

The provincial Justice Access Centres https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/jac may be able to direct you to other helpful parenting resources, and are located across the province. Contact them through [http://clicklaw.bc.ca/helpmap/service/1019 Clicklaw's HelpMap] or at:

<blockquote>Vancouver: 604-660-2084 
Victoria: 250-356-7012 </blockquote>

===Recommended reading for parents===
The federal Department of Justice has a number of high-quality resources in the [http://canada.justice.gc.ca/eng/fl-df/index.html family law section of its website] that you may find helpful. You'll find publications and research papers about parenting after separation and on other topics important to children's well-being after their parents separate. These papers are of a uniformly high quality and are well worth the read.
This website has a section on [http://canada.justice.gc.ca/eng/fl-df/parent/plan.html creating parenting plans] that links to three useful resources pages:
*[http://canada.justice.gc.ca/eng/fl-df/parent/mp-fdp/index.html Making Parenting Plans],
*[http://canada.justice.gc.ca/eng/fl-df/parent/ppc-lvppp/index.html Parenting Plan Checklist], and
*[http://canada.justice.gc.ca/eng/fl-df/parent/ppt-ecppp/index.html Parenting Plan Tool]
The federal Department of Justice's website also has information on [http://canada.justice.gc.ca/eng/fl-df/parent/kh-ae.html helping your kids cope].

There are lots of good books about parenting after separation available at your local bookstore, included the following (my favourites are in bold):

*''The Good Divorce: Keeping your family together when your marriage comes apart'', by D. Ahrons

*''Helping your Child through your Divorce'', by F. Bienenfeld

*'''''The Truth about Children and Divorce''''', by R.E. Emery

*''Healing Hearts: Helping Children and Adults Recover from Divorce'', by E. Hickey and E. Dalton

*'''''Helping your Kids Cope with Divorce the Sandcastles Way''''', by M.G. Neuman

*''Mom's House, Dad's House: Making Two Homes for Your Child'', by I. Ricci

*''Joint Custody with a Jerk: Raising your Child with an Uncooperative Ex'', by J.A. Ross

*''Helping Children Cope with Divorce'', by A. Teyber

===Recommended reading for children===

The books that follow are drawn from the suggestions of the Vancouver law firm Henderson Heinrichs and are reproduced with permission.

*''At Daddy’s on Saturdays'', by L. Walvoord and J. Friedman; for ages 5+

*''Dinosaurs Divorce: A Guide for Changing Families'', by L. Krasny Brown and M. Brown; for ages 4+

*''Divorce is a Grown Up Problem'', by J. Sinberg; for ages 4+

*''Let’s Talk About It: Divorce'', by F. Rogers; for ages 5+

*''On Divorce'' by S. Bennett Stein and E. Stone; for ages 3+

*''What’s Going to Happen to Me?'', by E. Leshan; for ages 9+

*''Why Are We Getting a Divorce?'', by P. Mayle and A. Robins; for ages 6+

The provincial Ministry of Justice has published two websites at [http://www.familieschange.ca www.familieschange.ca] designed to help children understand and cope with the issues that arise when their parents separate or divorce. One is for children and the other is for teens; both are very well put together.

The federal Department of Justice has published a book for 9- to 12-year-olds called ''[http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/pub/cal/2013/index.html What Happens Next?]'', available online and in print. The print version is a lot friendlier and what I'd suggest giving to a child.

==Resources and links==

===Legislation===
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

* [http://www.clicklaw.bc.ca/question/commonquestion/1010 Clicklaw Common Question: More information about the Parenting After Separation program]
* [http://www.clicklaw.bc.ca/resource/1527 Justice Education Society: Parenting After Separation handbook for parents]
* [http://www.clicklaw.bc.ca/resource/2637 Justice Education Society: Parenting After Separation brochure]
* [http://www.clicklaw.bc.ca/resource/1531 Justice Education Society: Aboriginal Parenting After Separation]
* [http://www.clicklaw.bc.ca/resource/1204 BC Ministry of Justice: Feedback from Parenting After Separation Program Participants]
* [http://www.clicklaw.bc.ca/resource/1638 Legal Services Society: Parenting After Separation courses]
* [http://www.clicklaw.bc.ca/resource/4139 BC Ministry of Justice and JES: A guide for grown-ups (Complement kids' guide to separation and divorce)]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/parent_after_separation.php Parenting After Separation program]
* [http://www.in.gov/judiciary/rules/parenting/ Indiana Parenting Time Guidelines]
* [http://fourthjudicialcourt.idaho.gov/ada/parenting_plans.html Sample Parenting Plans Idaho]
* [http://parenting.familieschange.ca Online Parenting After Separation Course]
* [http://www.informationchildren.com/ Simon Fraser University's Information Children Website]
* [http://www.justice.gc.ca/eng/pi/fcy-fea/ Department of Justice's Supporting Families Website]
* [http://clicklaw.bc.ca/resource/1588 Justice Education Society and BC Ministry of Justice's Families Change Website]
* [http://hearthechild.ca Hear the Child Society]

{{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]] April 15, 2019}}

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