Basic Principles of Parenting after Separation

When parents, judges and arbitrators have to make plans about parenting after separation, they're usually making plans about two broad issues: firstly, the schedule of the time that the children will spend with their parents and other important people in their lives; and, secondly, how parents will make important decisions affecting the children, about things like healthcare, extracurricular activities, language instruction, and schooling.

There are two laws that talk about these two issues, the federal Divorce Act and the provincial Family Law Act. The Divorce Act only applies to people who are or who used to be married to each other, but the Family Law Act applies to everyone, including people who are or who used to be married to each other, and anyone who has had a child with someone. The good news is that the two laws talk about parenting after separation using fairly similar terms. In general, the time children have with their parents is called parenting time, and parents' responsibility for making decisions about their children is called decision-making responsibility or parental responsibilities. In general, the time people who aren't parents have with children is called contact.

This section takes a deeper look at parenting after separation under the Divorce Act and the Family Law Act than the discussion provided in the first section of this chapter. It talks about who the laws apply to and how people become children's guardians. It talks about how the court makes decisions about parenting after separation, and the different kinds of parenting arrangements that are available.

Introduction

Under the federal Divorce Act, the time children have with their parents is called "parenting time," and parents' responsibility for making decisions about their children is called "decision-making responsibility." Under the provincial Family Law Act, the time children have with their parents is called "parenting time," and parents' responsibility for making decisions about their children is called "parental responsibilities." However, parenting time under the Divorce Act means the same thing as parenting time under the Family Law Act, and while there are some differences in how the Divorce Act talks about decision-making responsibilities and how the Family Law Act talks about parental responsibilities, you can think of them as meaning the same thing.

Unfortunately, this is where the similarities end. The Divorce Act only applies to people who are or who used to be married to each other. Under the Divorce Act, the people who have parenting time and decision-making responsibility are spouses, and a "spouse" might be a parent or a step-parent. The people who have "contact" with children are people who aren't "spouses." People who aren't spouses may, in certain circumstances, ask for parenting time and decision-making responsibility.

On the other hand, the Family Law Act applies to everyone, including people who are or who used to be married to each other. Under the Family Law Act, the people who have parenting time and parental responsibilities are guardians. "Guardians" are usually, but not always, parents. (Stepparents, extended family members and other adults can also ask to be appointed as the guardians of a child.) The people who have "contact" with children are people who aren't "guardians," including parents who aren't guardians.

When the court is asked to make orders about how children are cared for after separation, it will firstly consider whether the person asking for the order is a "spouse," a "parent," a "guardian" or someone else. The answer to this question is about whether the person asking for the order fits within the categories of people allowed to apply for the order, or, as it's sometimes put, whether the person has the standing to apply for the order. The answer to this question changes depending on the legislation the person is relying on, either the Divorce Act or the Family Law Act.

The law about parenting after separation

Making plans for how children will be raised after the relationship between their parents has ended is about deciding how important decisions about their care and upbringing will be made, and deciding where the children will live and how much time they will have with the important people in their lives. While the parents of a child are usually the people responsible for making these decisions, when parents can't agree, the decision may be made by a judge or by an arbitrator and the rules governing their decision will change depending on the legislation they are required to apply.

The Divorce Act

The Divorce Act only applies to people who are or used to be married to each other. In addition to divorce, the Divorce Act also talks about orders about decision-making responsibility, parenting time and contact with children, and about how those orders can be changed. If married or formerly married people are already involved in a court proceeding under the Divorce Act, other people can sometimes also ask for orders about the children in the court proceeding between the spouses.

Only the Supreme Court can deal with claims under the Divorce Act.

Standing

If a claim for orders about parenting after separation is being made under the Divorce Act, the parties must be or have been married to each other, and the spouse asking for the orders must have lived in the province in which the court proceeding is started for at least one year before the proceeding started. Because what matters about claims under the Divorce Act is that the parties are or were married to each other, this means that one of the parties might be a stepparent or an adoptive parent to the child, and not necessarily a biological parent.

In a court proceeding under the Divorce Act, someone who is a spouse can ask for orders that they have "parenting time" with a child or "decision-making responsibility" for a child.

If a court proceeding under the Divorce Act has already started, under section 16.1(1)(b) of the act, certain other people can also ask for orders about parenting time and decision-making responsibility. These people must be:

• someone who is not a spouse but is a parent of the child,
• someone who is not a spouse but "stands in the place of a parent" to the child, or
• someone who is not a spouse but intends to stand in the place of a parent to the child.

These people could also ask for an order that they have "contact" with the child. In fact, as long as a court proceeding under the Divorce Act has started, anyone can ask for an order that they have contact with a child.

However, before anyone who isn't a spouse can ask for orders about children under the Divorce Act, they must first get the court's permission, called leave, before they make their application. Section 16.1(2) says that people other than spouses must get leave before asking for orders about parenting time and decision-making responsibility; section 16.5(2) says that people other than spouses must get leave before asking for orders for contact with a child.

Limitation periods

Some kinds of claims must be made within a certain amount of time, called a limitation period, and cannot be made after the limitation period has passed. Under the provincial Family Law Act, for example, a spouse must make a claim for spousal support within two years of the date of their divorce or the date their marriage was annulled.

There's a limit to when claims under the Divorce Act for parenting time, decision-making responsibility and contact can be made as well. Under the Divorce Act, the only young people the court can make orders about are "children of the marriage." Section 2(1) of the act defines a child of the marriage as the child of one or both spouses as long as the child is:

• under the age of majority, or
• older but unable to withdraw from the care of their parents because of "illness, disability or other cause."

"Other cause" usually means that the child is still going to school, usually college or university.

Once a young person no longer qualifies as a "child of the marriage," the court cannot make orders for parenting time, decision-making responsibility and contact about that child.

Statutory provisions

These are the important sections of the Divorce Act that talk about parenting time and decision-making responsibility:

• section 2: definitions
• section 3: the court's authority to make orders for parenting time and decision-making responsibility when a spouse is asking for a divorce order
• section 4: the court's authority to make orders for parenting time and decision-making responsibility after the court has made a divorce order
• section 5: the court's authority to change orders for parenting time and decision-making responsibility after the court has made a divorce order
• section 6: transfer of court proceedings when the children normally live in another province
• section 6.3: the court's authority to make or change orders for parenting time and decision-making responsibility about children who normally live outside of Canada
• section 16: the court must make orders for parenting time and decision-making responsibility taking into account only the best interests of the child
• sections 16.1, 16.2 and 16.3: parenting time and decision-making responsibility
• section 16.4: someone with parenting time or decision-making responsibility may get information about the child
• section 16.6: including parenting plans in orders for parenting time or decision-making responsibility
• sections 16.9, 16.91 and 16.93: relocation
• section 17: changing orders for parenting time and decision-making responsibility

These are the important sections of the Divorce Act that talk about contact:

• section 2: definitions
• section 6.1: the court's authority to make orders for contact
• section 6.3: the court's authority to make or change orders for contact with children who normally live outside of Canada
• section 16: the court must make orders for contact taking into account only the best interests of the child
• sections 16.5: contact
• section 16.6: including parenting plans in orders for contact
• sections 16.9, 16.91, 16.93 and 16.96: relocation
• section 17: changing orders for contact

The Family Law Act

Although the Divorce Act only applies to people who are or were married to each other, the Family Law Act applies to everyone. The Family Law Act talks about orders about parental responsibilities, parenting time and contact with children, about how those orders can be changed, and about how those orders can be enforced.

Both the Provincial Court and the Supreme Court can deal with claims under the Family Law Act.

Standing

The people who can ask for orders about parental responsibilities and parenting time are guardians. Most of the time the parents of a child 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. It's important to know that being a parent doesn't automatically mean that you are also a guardian.

If someone who is not a guardian wants to ask for orders about parental responsibilities or parenting time, they must first become a guardian of the child. Guardianship and becoming a guardian are discussed in more detail later in this section.

People who are not guardians can ask for orders about contact with a child.

Limitation periods

Under the Family Law Act, the court can only make orders for parental responsibilities, parenting time and contact about young people who qualify as children. Section 1 defines a "child" as "a person who is under 19 years of age." Although the act has broader definitions of "child" that can include children who are 19 and older, those broader definitions only apply to the parts of the legislation about parentage and child support.

Statutory provisions

These are the important sections of the Family Act that talk about guardianship, parenting time and parental responsibilities:

• section 1: definitions
• section 19.10: the obligation of arbitrators to make decisions about a child taking into account only the best interests of the child
• sections 23 to 33: parentage
• sections 37 and 38: the court must make orders for parenting time and parental responsibilities taking into account only the best interests of the child
• section 39: when parents are and are not guardians
• sections 40, 41, 43 and 49: parental responsibilities
• sections 40 and 42: parenting time
• section 44: guardians' ability to make agreements for parenting time and parental responsibilities
• section 45: the court's authority to make orders for parenting time and parental responsibilities
• section 47: the court's authority to change agreements and orders for parenting time and parental responsibilities
• section 50: agreements about guardianship
• sections 51 and 52: orders about guardianship
• sections 53, 54, 56 and 57: appointing a person as a guardian in a will
• sections 55, 56 and 57: appointing a person as a standby guardian
• sections 61, 62, 63 and 231: enforcing orders and agreements for parenting time
• sections 65 to 71: relocation
• sections 182 to 189: family violence
• section 202: the court's authority to decide how evidence from children is received
• section 203: children's lawyers
• sections 208 and 209: guardianship of Nisga'a and treaty First Nation children
• section 211: parenting assessments

These are the important sections of the Family Act that talk about contact:

• section 1: definitions
• section 19.10: the obligation of arbitrators to make decisions about a child taking into account only the best interests of the child
• sections 37 and 38: the court must make orders for contact taking into account only the best interests of the child
• section 39: when parents are and are not guardians
• section 58: agreements about contact
• section 59: orders about contact
• section 60: the court's authority to change agreements and orders for contact
• sections 61, 62, 63 and 231: enforcing orders and agreements for contact
• sections 65 to 71: relocation
• sections 182 to 189: family violence
• section 202: the court's authority to decide how evidence from children is received
• section 203: children's lawyers
• section 211: parenting assessments

Parenting time, contact and child support

A person's time with a child is entirely different and separate from any duty they might have to pay child support. Child support is not a fee paid to get parenting time or contact, nor is it a fee charged in return for allowing parenting time or contact. Child support is paid by one person to another to help the person receiving support, the recipient, cover the costs associated with raising the child. Parenting time or contact, on the other hand, is about a child's right to benefit from spending time with an adult, as long as that time is in the child's best interests.

However, there are two circumstances where the arrangements made for parenting time and contact can have an impact on how child support is calculated: when the parents share their children's time more or less equally; and, when each parent has the primary home of one or more of the children. You can read more about child support in the Child Support chapter.

Shared parenting time

Shared parenting time is a term used by the Child Support Guidelines to describe a kind of parenting situation in which the children spend an equal or almost equal amount of time with each parent. Where parents have shared parenting time, the children will usually spend a certain amount of time with one parent at that parent's home and a similar amount of time with the other parent at their home. Shared parenting time 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.

For many people, child support is calculated using the tables attached to the Child Support Guidelines that say how much child support is payable according to the income of the person paying child support, the payor, and the number of children support is being paid for. However, once the payor has the children for 40 percent or more of their time, section 9 of the Guidelines says that the amount of support paid can be a different amount than what the Guidelines tables require. Almost all of the time, the amount paid is less, often a lot less, than what the table says should be paid, on the basis that because the payor has the children for so much of their time, the payor is spending more on the day-to-day needs of the children and the recipient is spending less.

Unfortunately, because a payor's time with the children is sometimes tied to the amount of their child support obligation, the court often hears payors saying "the only reason you don't want the kids to spend so much time with me is because you don't want me to pay less child support," or, on the other hand, recipients saying "the only reason you want the kids for so much time is because you want to pay less child support." It can be hard to keep discussions about parenting time and contact focused on the needs of the children and not on the impact of shared parenting time on child support.

You can get more information about shared parenting time in the Exceptions to the Child Support Guidelines section of the Child Support chapter.

Split parenting time

Split parenting time is a term used by the Child Support Guidelines to describe a kind of parenting situation in which one or more of the children live mostly with each parent.

This is a fairly unusual arrangement as it requires the separation of siblings for a lot of their time, and there's sometimes a risk that siblings will 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 divide the family unit, such as when the children are constantly fighting or when one child has a particular attachment to a parent not wholly shared by the other children.

In cases like this, each parent pays the full amount of child support required by the Child Support Guidelines tables to the other parent, based on the number of children in that parent's care. Under section 8 of the Guidelines, the amount that changes hands is the difference between the higher amount of child support and the lower amount of support.

You can get more information about split parenting time in the Exceptions to the Child Support Guidelines section of the Child Support chapter.

Guardianship

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 of the individual, and guardianship of the estate of the individual. Under the Family Law Act, "guardianship" of a child is about being a guardian of the person of the child, which means being responsible for making parenting decisions that are in their best interests. Guardianship of the estate of the child is handled separately, under Part 8 of the act, which talks about children's property.

Most of the time a child's parents will be the child's guardians, but other people can be guardians too, including grandparents and stepparents as well as people who:

• have a court order appointing them as guardians,
• are appointed as the guardian of a child in a guardian's will, and
• are appointed as the standby guardian of a child by a guardian who is facing a terminal illness or a permanent mental incapacity.

It's important to know that a child can have one, two or more guardians, just the way that a child can have one, two or more parents.

Only the Family Law Act talks about guardianship, because making rules about guardianship is a responsibility of the provinces, not the federal government. The federal Divorce Act doesn't — and can't! — talk about guardianship. But the act uses concepts that are a lot like guardianship, when it talks about the rights and responsibilities involved in decision-making responsibility and parenting time.

This section talks about parents who are presumed to be the guardians 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 parental responsibilities and parenting time, which are the rights and obligations guardians hold.

Being a guardian

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

(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. ...

(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies:

(a) section 30 applies and the person is a parent under that section;

(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian;

(c) the parent regularly cares for the child.

Putting this another way, under section 39(1), parents who lived together for some time after their child was born, since birth is when you become a parent, are presumed to be the guardians of their child both during their relationship and after they separate. You don't need an agreement, an order or an award saying you're a guardian, you just are a guardian. It's automatic, as long as you meet the test in section 39(1) of the Family Law Act.

Parents who didn't live together, on the other hand, aren't guardians unless:

• they are parents because of an assisted reproduction agreement signed before the child was conceived (that's the bit about section 30 in section 39(3)(a)),
• the parent who the child doesn't usually live with and all of the child's guardians make an agreement that the parent is a guardian, or
• the parent who the child doesn't usually live with "regularly cares for the child."

It's easy to show that you're a guardian under section 39(3)(a) and (b) because you'll have a written agreement that says you're a guardian.

It's harder to show that you're a guardian under section 39(3)(c) because the Family Law Act doesn't say exactly what "regularly cares for the child" means. The dictionary definition of "regular" is something that occurs at recurring intervals... but surely "regular" intervals of two hours every three months or every three years isn't what the provincial government meant when it was writing section 39(3)(c). This is important for parents, generally fathers, who weren't living with the other parent, generally birth mothers, when the child was born and never lived with the other parent afterward. In cases like this, you may have to go to court to argue that your "regular care" for the child qualifies you as a guardian under section 39(3)(c). This is what the Court of Appeal said in the 2015 case of A.A.A.M. v. British Columbia (Director of Adoption):

"I doubt that a visit once every calendar year could be intended to qualify as 'regular' for purposes of s. 39(3)(c), even though it could be said to have taken place at regular intervals. It seems to me that the intention of the Legislature was to refer to a parent who has demonstrated a continuing willingness to provide for the child's ongoing needs and a record of 'usually' or 'normally' doing so in fact. Certainly, it connotes something more than simply 'visiting' the child, even at regular intervals."

Now, all of this is really important because if you're a child's guardian, you:

• have parenting time with the child,
• are presumed to be able to exercise all parental responsibilities on behalf of the child,
• have day-to-day care and control of the child and day-to-date decision-making responsibility for the child when the child is with you,
• are entitled to get information about the child's health and education from people who have that information,
• are presumed to be entitled to manage property belonging to the child that's worth less than $10,000,
• have the right to object if another guardian wants to move away with the child, and
• you can appoint someone to be a guardian of your child in the event of your death through your will.

If you're not a guardian, you don't have any of these entitlements. You have contact with the child, if you spend time with the child, you don't have day-to-day care and control of the child or day-to-date decision-making responsibility for the child when the child is with you, you aren't entitled to get information about the child's health and education, and you can't object if a guardian wants to move.

Becoming a guardian

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

• ask the court for a declaration that you are a guardian because you regularly care for the child under section 39(3)(c) of the Family Law Act,
• make an agreement with the child's guardians that you are a guardian under section 39(3)(b), or
• ask the court for an order appointing you as a guardian of the child, under section 51.

There's also the chance that a guardian might decide to:

• appoint you as a guardian in their will, under section 53 of the Family Law Act, so that you become a guardian of the child when the appointing guardian dies, or
• appoint you as a standby guardian of the child, under section 55, so that you become a guardian of the child when the appointing guardian is diagnosed with a terminal illness or a permanent mental incapacity.

If you are not one of the child's parents, your choices are more limited. You can ask the court for an order appointing you as a guardian of the child, under section 51 of the Family Law Act, or you can be appointed as a guardian in an appointing guardian's will or as a standby guardian.

Becoming a guardian by agreement

If you are a parent, you can become a guardian under section 39(3)(b) of the Family Law Act by making a written agreement with all of the child's other guardians. But if one of the child's guardians disagrees, you won't have any choice except to apply to court for an order appointing you as one of the child's guardians.

Guardians can't make an agreement appointing anyone other than a parent as a guardian.

Becoming a guardian by court order

Parents and anyone else can apply to be made a guardian of a child under section 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 26 of the Provincial Court Family Rules requires the applicant to provide a special affidavit in Form 5, signed no more than seven days before it is filed in court. The affidavit requires applicants to talk about:

• their relationship with the child,
• the child's current living arrangements,
• their plans for the parenting of the child,
• any incidents of family violence that might affect the child, and
• their involvement with other court proceedings involving children under the Family Law Act, the old Family Relations Act, the Child, Family and Community Service Act, and the Divorce Act.

Before the Guardianship Affidavit in Form 5 can be signed and filed with the court, the applicant will need to obtain three record checks:

1. a child protection record check from the British Columbia Ministry of Children and Family Development,
2. a protection order record check from the Protection Order Registry, and
3. a criminal record check.

These record checks must be recent and not more than 60 days old when the Guardianship Affidavit in Form 5 is filed in Provincial Court. Once collected together, the need to attach them as exhibits to the Form 5 affidavit.

For the Supreme Court, Rule 15-2.1 of the Supreme Court Family Rules says much the same thing, and also requires a special affidavit with the same three records checks added as exhibits. The special affidavit, Form F101, must be signed not more than 28 days before the hearing where people will present arguments, or not more than seven days before being filed in court if there will not be a hearing. The records checks must be dated no more than 60 days before the date of the hearing.

Where do you get these three records checks?

• To get a criminal records check, go to your local police station.
• The forms required to get the Ministry of Children and Family Development records check and the Protection Order Registry records check can be found online from the Ministry of Justice. The forms you'll need are:
  1. Consent for Child Protection Record Check: This form must be signed in front of a commissioner for taking affidavits, such as a lawyer, a notary public or a registrar of the Supreme Court. Submit the completed form to the court registry where you're making your application.
  2. Request for Protection Order Registry Search: This form must also be submitted to the court registry where the application is being made.

Becoming a guardian by will or a standby appointment

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

Testamentary guardians can be appointed in the appointing guardian's will or if the guardian completes an Appointment of Standby or Testamentary Guardian in Form 2 of the Family Law Act Regulation. Their appointment takes effect when the appointing guardian dies.

Standby guardians are appointed when the appointing guardian completes an Appointment of Standby or Testamentary Guardian, and their appointment takes effect when the conditions of the appointment are met, usually through a letter from a medical professional confirming that the appointing guardian has a terminal illness or a permanent mental incapacity.

Read more about this way of becoming a guardian in the discussion about the incapacity and death of guardians a bit later in this section.

Avoiding guardianship and terminating guardianship

It's important to know that someone doesn't become the guardian of a child just because of their relationship with someone who is a guardian of that child. Section 39 of the Family Law Act says that:

(4) If a child's guardian and a person who is not the child's guardian marry or enter into a marriage-like relationship, the person does not become a guardian of that child by reason only of the marriage or marriage-like relationship.

Likewise, you won't become a guardian just by living with a guardian as a roommate or being a close fried of a guardian, no matter how much time you spend with the guardian or the child. If you're not a parent of the child, you can only become a guardian if the court makes an order appointing you as a guardian, if a guardian makes a will naming you as a guardian, or if a guardian makes you a standby guardian.

Sometimes, parents want to avoid being a guardian. Section 39 of the Family Law Act also says that

(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.

Sometimes, a guardian wants to remove another person as a guardian of a child. In cases like this, the guardian can ask the court for an order "terminating" a person's guardianship of a child under section 51 of the Family Law Act. This doesn't happen very often, even if the guardians are involved in high levels of conflict and can never agree on anything. Often, the court will take parenting time, parental responsibilities or both away from a guardian before removing them as a guardian.

Inability, incapacity or death of a guardian

When a guardian anticipates being unable to care for a child, either temporarily or permanently, they may appoint someone to act as guardian of the child in their place. No matter the age or health of a guardian, it's always a good idea to think about who might be able to look after the child in the event you die or become too ill to do so, and then record those arrangements in a will or in an Appointment of Standby or Testamentary Guardian form.

Temporary authorizations

Under section 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, permit, benefit, privilege or other thing 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,
• requesting and receiving from third-parties health, education, or other information about the child, and
• exercising any other responsibilities reasonably necessary to nurture the child's development.

Authorizations like these are mostly used when a child has to go somewhere else to attend school and the guardian needs to make sure the child is looked after, when the guardian is seriously ill but going to recover, or when the guardian is going to be out of commission for a while to recover from an illness, a surgery or some other kind of debilitating treatment.

Standby appointments

Under section 55 of the Family Law Act, when a guardian is facing a terminal illness or permanent loss of mental capacity, the guardian can appoint someone else to become a guardian of the child when they become incapable of continuing to act in that capacity.

Appointments are made by filling out an Appointment of Standby or Testamentary Guardian in Form 2 of the Family Law Act Regulation. The appointing guardian must sign the form in the presence of two witnesses, neither of whom can be 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. The appointing guardian cannot give a standby guardian any more parental responsibilities than those the appointing guardian had at the time of the appointment.

For the appointment to be effective, the 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 an appointment under section 51 of the Family Law Act, and will continue as the guardian of the child after the death of the appointing guardian.

Testamentary appointments

Under section 53 of the Family Law Act, a guardian can appoint someone to become the guardian of a child when they die.

Appointments are made either by filling out an Appointment of Standby or Testamentary Guardian form or in the guardian's will. For appointments made using an Appointment of Standby or Testamentary Guardian, the guardian must sign the form in the presence of two witnesses, neither of whom can be the guardian being appointed. The appointing guardian cannot give the testamentary guardian any more parental responsibilities than those the appointing guardian had at the time of the appointment.

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

As with standby guardians, a person who is appointed as a testamentary guardian does not have to apply for an appointment under section 51 of the Family Law Act.

Parental responsibilities, decision-making responsibility and parenting time

Under the federal Divorce Act, someone who is a "spouse" may have decision-making responsibility and parenting time with a child. Under the provincial Family Law Act, someone who is a "guardian" may have parental responsibilities and parenting time with a child. The difference in language can be a bit confusing, but you can assume that "decision-making responsibility" under the Divorce Act means pretty much the same thing as "parental responsibilities" under the Family Law Act, and that "parenting time" means the same thing under both statutes.

Under the Divorce Act, the parts of an order that talk about decision-making responsibility and parenting time are called a "parenting order." A "parenting plan" is the part of a document, usually an agreement between spouses, that talks about decision-making responsibility and parenting time.

Under the Family Law Act, the parts of orders, agreements and awards that talk about parental responsibilities and parenting time are called "parenting arrangements."

It's important to remember that parenting orders under the Divorce Act are to be made taking into account only the best interests of the child, applying the factors listed in section 16 of the act. The same requirement appears in the Family Law Act, and the parties and the court must make decisions about parenting arrangements taking into account only the best interests of the child, applying the factors listed at sections 37 and 38 of that act.

Parental responsibilities and parenting time under the Family Law Act

Section 40 of the Family Law Act talks about who may have parental responsibilities and parenting time with respect to a child, and how they may be shared:

(1) Only a guardian may have parental responsibilities and parenting time with respect to a child.

(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.

(3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by

(a) one or more guardians only, or

(b) each guardian acting separately or all guardians acting together.

(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.

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 all of a child's guardians to share certain parental responsibilities or divide parental responsibilities so that a particular responsibility may only be exercised by one or more guardians acting on their own. For example, in one family, Guardian A and Guardian B might both have parental responsibility for making decisions about the child's schooling and health care, while Guardian A has sole responsibility for making decisions about the child's extracurricular activities and Guardian B has sole responsibility for making decisions about the child's language instruction.

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

The different decisions "parental responsibilities" includes are listed at section 41:

(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

(b) making decisions respecting where the child will reside;

(c) making decisions respecting with whom the child will live and associate;

(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;

(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;

(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;

(g) applying for a passport, license, permit, benefit, privilege or other thing for the child;

(h) giving, refusing or withdrawing consent for the child, if consent is required;

(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

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

(k) subject to any applicable provincial legislation,

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

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

(l) exercising any other responsibilities reasonably necessary to nurture the child's development.

It's important to know that, under section 43(1), guardians must always exercise parental responsibilities in the best interests of the child.

The parts of the Family Law Act that deal with parenting time are much less complicated. Section 42 says this:

(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.

(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.

Remember, however, that section 40(4) says that "no particular arrangement is presumed to be in the best interests of the child," including, at section 40(4)(b), "that parenting time should be shared equally among guardians."

The duty to consult before making decisions

Section 40(2) of the Family Law Act requires a child's guardians to talk to each other before exercising a parental responsibility and making an important decision affecting the child, unless the right to exercise that parental responsibility has been assigned to just the guardian or guardians who are making the decision. This provision is really important. Here it is again:

(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.

In other words, unless you have the exclusive right to make decisions about the child's schooling, you can't just enrol your child at a school without first talking to the child's other guardians and trying to reach an agreement about where the child will go to school. The same thing applies to other, equally important, decisions about things like health care, choice of religious instruction and so on. Here's how the Provincial Court described the duty to consult in a 2021 case called K.K. v D.H.:

"The starting place, then, is that unless there is an agreement or court order to the contrary, guardians of a child share the responsibility of making decisions respecting where their child resides and, in arriving at that decision, they are expected to consult with one another and then come to a decision as to what is best for their child. ...

“Another underlying principle or philosophy of the FLA is that generally, and but for exceptional circumstances, guardians must avoid, and be discouraged from, unilateral decision-making relating to matters affecting their children. The obvious concern is that making decisions that are ‘one-sided’, and therefore made without a fulsome consideration of the impact of a decision on a child, can result in an outcome that is highly disruptive for a child and ultimately found not to be in a child’s best interests.”

The Supreme Court said much the same thing in a 2021 case called L.D.R. v J.C.L.:

"The parties are both guardians of [the child], the parties share parental responsibilities, and pursuant to s. 40(2) of the FLA there is a duty to consult with each other. The claimant does not have a unilateral or final say."

If a guardian does make a decision about a shared parental responsibility on their own, a unilateral decision, another guardian who disagrees with that decision can apply to court for an order for the decision they think is right. The child's guardians will each be able to explain to the judge why the decision they think is right is the decision that is in the best interests of the child, but there is no guarantee that the judge will agree with the guardian who made the unilateral decision. In the Supreme Court, that guardian also needs to be worried that the court may make a costs order in favour of the guardian who made the application because of the time and expense involved in making that application.

Children and healthcare decisions

Section 41(f) of the Family Law Act is about making decisions about children's health, including medical care and medical procedures, drug prescriptions, dental and orthodontic work, and mental health care including counselling. It says this:

(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;

The reference to the provincial Infants Act probably seems out of place in a statute that's all about families and family breakdown. It makes a lot more sense when you look at what section 17 actually says:

(1) In this section:

“health care” means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health related purpose, and includes a course of health care;

“health care provider” includes a person licensed, certified or registered in British Columbia to provide health care.

(2) Subject to subsection (3), an infant may consent to health care whether or not that health care would, in the absence of consent, constitute a trespass to the infant’s person, and if an infant provides that consent, the consent is effective and it is not necessary to obtain a consent to the health care from the infant’s parent or guardian.

(3) A request for or consent, agreement or acquiescence to health care by an infant does not constitute consent to the health care for the purposes of subsection (2) unless the health care provider providing the health care

(a) has explained to the infant and has been satisfied that the infant understands the nature and consequences and the reasonably foreseeable benefits and risks of the health care, and

(b) has made reasonable efforts to determine and has concluded that the health care is in the infant’s best interests.

This section of the Infants Act allows "children" – persons under the age of 19 in British Columbia – to make their own decisions about their healthcare, with or without the consent of their guardians, as long as the healthcare provider has decided that:

• the care is in the best interests of the young person, and
• the young person understands the nature and consequences of the care, and its reasonably foreseeable benefits and risks.

This provision of the Infants Act seems to conflict with the parts of section 41 of the Family Law Act on guardians' responsibility to make healthcare decisions for a child. The Court of Appeal discussed how the Infants Act and the Family Law Act work together in a 2020 case called A.B. v C.D.:

“Under s. 41(f), parental responsibility for ‘giving, refusing or withdrawing consent to medical, dental and other health related treatments for the child’ is subject to s. 17 of the Infants Act. ... This reflects a carefully legislated balance between parental responsibilities, medical expertise, the protection of young people, and the right of a capable individual to medical self-determination.

“Clearly ‘subject to s. 17’ means subject to a lawful exercise of the rights accorded to mature minors under s. 17. The lawful exercise of those rights requires a health care provider to assess whether the ‘infant’ understands the nature, consequences, benefits, and risks of the proposed treatment, and whether the treatment is in that individual’s best interests.

“The court’s approach to that review must be deferential given the legislative intent behind s. 17 to recognize the autonomy of mature minors and the expertise and good faith of the health care providers.”

In other words, children who are able to make their own decisions about their healthcare get to make those decisions, regardless of the views of one or more of their guardians.

Decision-making responsibilities and parenting time under the Divorce Act

Section 2(1) of the Divorce Act defines "decision-making responsibility" and "parenting time" relatively briefly:

decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of

(a) health;

(b) education;

(c) culture, language, religion and spirituality; and

(d) significant extra-curricular activities; ...

parenting time means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time;

The word "including" at the beginning of the definition of decision-making responsibility means that the sort of "significant decisions" that fall under the heading of "decision-making responsibility" aren't limited to just the four decisions listed in the definition. The longer list of parental responsibilities provided in section 41 of the Family Law Act can all be addressed in orders about decision-making responsibility under the Divorce Act.

Section 16.1 talks about the kind of parenting orders the court may make:

(4) The court may, in [a parenting order],

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate. ...

(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

Section 16.3 talks about decision-making responsibility:

Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

Finally, sections 16 and 16.2 talk about parenting time. Section 16.2 is about the orders the court can make:

(1) Parenting time may be allocated by way of a schedule.

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

Section 16(6) gives some additional guidance to the court when it makes orders about parenting time. It says that:

In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

Under the old Divorce Act, this was known as the "maximum contact" principle. The new Divorce Act drops this term to emphasize that under the new legislation, just like under the old legislation, decisions about children's time with each spouse are to be guided only by the child's best interests. This section does not create an automatic right to a shared parenting schedule.

Making parenting arrangements

You have a number choices when it becomes important to formalize the parenting arrangements for a child. You can come up with an agreement with the other parent, using negotiation, mediation, or a collaborative settlement process, or, if you can't agree, you can go to court or you can decide to use arbitration. Arbitration, like mediation, is a process that everyone involved needs to agree to use. However, unlike mediation, the arbitrator will make a final and binding decision if an agreement cannot be reached. You can get more information about negotiation, mediation, collaborative settlement processes and arbitration in the chapter Resolving Family Law Problems out of Court, and more information about litigation in the chapter Resolving Family Law Problems in Court.

It sometimes takes a while for parents to get to the point where they feel they must get something formal in place. Sometimes, people are just content with how things are working. In cases like this, where a stable parenting arrangement has managed to gel over time, section 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:

(1) If

(a) no agreement or order respecting parenting arrangements applies in respect of a child, and

(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, 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.

(2) Nothing in subsection (1) prevents a child's guardian from seeking

(a) an agreement respecting parenting arrangements, or

(b) an order under section 45.

When formal arrangements are required, section 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 arrangements 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 section 45 of the Family Law Act, and married spouses can apply for a parenting order under section 16.1 of the Divorce Act.

When a child has more than one parent, the parents must work together and cooperate in raising the child. This can sometimes be difficult, particularly when there is a lot of conflict in the parents' relationship with each other. Before the Family Law Act came into effect, the rights and obligations involved in raising children were addressed through agreements and orders about custody, guardianship and access under the old Family Relations Act. Similarly, before the new Divorce Act came into effect, these issues were addressed through orders about custody and access under the old Divorce Act. Now, the Family Law Act talks about parental responsibilities and parenting time and the Divorce Act, using similar ideas and similar language, talks about decision-making responsibility and parenting time. The first section in this chapter, Children, talks about how to understand agreements and orders made under the old Divorce Act applying the language of the new Divorce Act in "Parenting after separation and the law."

Parental responsibilities and decision-making responsibility

Guardians can make agreements about how parental responsibilities for a child will be shared between them under section 44 of the Family Law Act. These agreements:

• should be written down whenever possible, and
• can only been made when the guardians have separated or are about to separate.

Written agreements can be filed in court under section 44(3) of the act and, once filed, can be enforced just like they are orders of the court.

When guardians can't agree on how parental responsibilities for a child will be shared, they can apply to court to get an order about how they'll be shared under section 45 of the Family Law Act. Parents who are married can also apply for an order about how decision-making responsibility will be shared under section 16.1 of the Divorce Act.

Orders about parental responsibilities and decision-making responsibility are either interim or final, and, like agreements, cannot be made until the parents have separated. An "interim order" is an order that has been made after a court proceeding has been started but before the court proceeding has wrapped up with a final order made after trial or by a final order that is made with the agreement of the parties. Interim orders can be changed by other interim orders. A "final order" is an order that is made by a judge either after a trial or by the agreement of the parties. Final orders can be changed too, providing there has been an important change in the circumstances of a party or a child, but are otherwise intended to be permanent.

It's important to know that interim orders are intended to be a sort of rough-and-ready solution to the legal issues parents have to address after separation, and are only meant to last until a final order is made. They are short-term solutions intended to deal with immediate problems about things like where a child will live and the role each parent will play in raising the child. While interim orders 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 that are 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 parents get on with their court proceeding.

Factors

There are two sets of factors that judges and arbitrators will consider in making orders about parental responsibilities and decision-making responsibility, the factors set out in the legislation and the additional factors that have developed through the courts. As far as the legislation is concerned, the most important factors are the children's best interests. Section 16 of the Divorce Act says that:

(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. ...

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

The list of Divorce Act best-interests factors is set out in section 16(3), and the list of additional factors to be considered when assessing the impact of family violence is set out in section 16(4).

Section 37 of the Family Law Act says this:

(1) 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. ...

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

The list of Family Law Act best-interests factors is set out in section 37(2), and the list of additional factors to be considered when assessing the impact of family violence is set out in a separate section, section 38.

The courts have expanded these factors into the following general principles when determining how parental responsibilities and decision-making responsibility will be allocated. The court may consider:

• each parent's ability and willingness to cooperate with the other parent when making decisions about the children, and the history of their cooperation and communication with each other,
• the extent to which the parents share a common approach to parenting and a common view of the children's needs and interests,
• each parent's understanding of the needs of the children and their ability to make appropriate decisions that address those needs,
• each parent's character, fitness, and overall parenting capacity, depending on the circumstances of the case and as long as issues like this are genuinely important and relevant,
• each parent's mental and physical capacity, again depending on the circumstances of the case and as long as issues like this are genuinely important and relevant, and
• the impact of any family violence, and the steps taken by the parent responsible for the family violence to prevent further family violence from occurring.

There is no guaranteed way to predict the outcome of a court proceeding about the allocation of parental responsibilities and decision-making responsibility. In most cases, it seems that parental responsibilities and decision-making responsibility wind up being shared. Conflict between parents, including basic disagreements about parenting philosophy, is often resolved by making one parent the decision-maker in the event parents cannot agree on a particular decision or by dividing parental responsibilities and decision-making responsibility about particular categories of decision. Either way, the critical factor in orders about parental responsibilities and decision-making responsibility is the best interests of the child.

Sharing all responsibilities

Most of the time, guardians wind up sharing all parental responsibilities with respect to a child and married spouses wind up sharing all decision-making responsibilities. This sort of arrangement can be agreed to or ordered regardless of how much time the children spend with each parent. However, this arrangement does require that parents work together and cooperate in raising the children.

Where parents work well together, and have similar approaches to parenting and similar hopes and expectations for their children, this arrangement can work quite well. However, when parents are likely to run into problems resolving disagreements on their own, it can sometimes help to have a "tie-breaker" clause added into the agreement or order. A common tie-breaker clause under the Family Law Act looks like this:

The parties will share all parental responsibilities with respect to the child. Except in emergencies, the parties must consult each other before making a significant decision affecting the child. In the event that the parties, despite their best efforts, cannot agree on a significant decision affecting the child, Guardian A will make the decision and Guardian B may apply to court for directions or an order about the decision under section 49 of the Family Law Act.

(Section 49, if you're curious, says that "a child's guardian may apply to a court for directions respecting an issue affecting the child, and the court may make an order giving the directions it considers appropriate.")

Tie-breaker clauses like this are helpful because they ensure that important decisions do get made, even if a parent disagrees. The parent who disagrees has the right to go to court to challenge the decision, but also has to think about the time and money involved in making the application. Is the decision so important that the time and expense of going to court are justified?

Sharing some responsibilities

Where parents generally work well together, but have different parenting philosophies and different hopes and expectations for the children, it may be better that only one parent has responsibility for making decisions about certain subjects while both parents continue to share responsibility for other subjects. In general, the subjects that are assigned to one parent tend to be big, all-or-nothing subjects where compromise is difficult if not impossible, such as decisions about the child's:

• religious instruction, particularly when parents have very different religious beliefs,
• healthcare, particularly when parents have different views about the efficacy of traditional medicine or their views about medicine are influenced by religion, and
• education, particularly where parents have different views about the efficacy of the public school system or concerns about the curriculum.

During COVID-19, for example, the courts were very busy dealing with applications about whether children should or should not be vaccinated and must or must not wear masks. Where parents disagree about issues like these, it's often the case that no dispute resolution process will help them see eye to eye.

A common set of clauses sharing some but not all parental responsibilities under the Family Law Act might look like this:

The parties will share all parental responsibilities with respect to the child, except for decisions concerning the education of the child and the child's participation in extracurricular activities. Except in emergencies, the parties must consult each other before making significant shared decisions affecting the child.

Guardian A will be solely responsible for making decisions concerning the education of the child. In the event that Guardian B disagrees with a decision made by Guardian A, Guardian B may apply to court for directions or an order about the decision under section 49 of the Family Law Act.

Guardian B will be solely responsible for making decisions concerning the child's participation in extracurricular activities. In the event that Guardian A disagrees with a decision made by Guardian B, Guardian A may apply to court for directions or an order about the decision under section 49 of the Family Law Act.

This example is just an example. There is no requirement that if one parent gets sole responsibility for one kind of decision that the other parent automatically gets sole responsibility for another kind of decision. Depending on the issues and the circumstances, it could certainly be the case that just one parent winds up with sole responsibility for all hotly-contested decisions.

Sharing no responsibilities

When the conflict between parents is extreme or a parent has rarely or never been involved in the child's day-to-day life, it may be more appropriate that the parent who has primarily cared for the child in the past, and usually been responsible for making decisions about the child, continue in that role and be the only parent with parental responsibilities or decision-making responsibilities. A clause with this sort of arrangement under the Family Law Act might look like this:

Guardian A will have all parental responsibilities with respect to the child and is not required to consult with Guardian B before making a significant decision affecting the child.

Parallel parenting

"Parallel parenting" is another way of dealing with parental responsibilities or decision-making responsibilities when the level of conflict between parents is extreme and they rarely agree on any decisions that have to be made about their children. The idea with parallel parenting is that each parent has complete and sole responsibility for making decisions about their children when the children are in their care, so that no discussions, consultations or negotiations between the parents are ever necessary. As you can imagine, there are lots of challenges involved in this model of managing decisions.

First, this approach can make it very difficult to schedule things during the other parent's parenting time. The timing of medical and dental appointments is usually based on the availability of the medical professional rather than the parents' schedule of parenting time. Common activities, like sports, music lessons and art lessons, tend to be scheduled every week and it can be challenging to find activities that match the parents' parenting time. And parent-teacher meetings happen when the school calendar says they happen.

Second, a lot of really important decisions aren't limited to a particular schedule of parenting time. Decisions about children's education, healthcare, diet and religious instruction affect the children no matter whose home they're living at. Handling these decisions requires either that one parent have sole responsibility for the decision, that the parents must consult each other about the decision, or that the decision is given to a judge or an arbitrator to resolve.

A helpful 2004 decision of the Provincial Court, J.R. v S.H.C., talks about parallel parenting at length. In this arrangement, the court said that:

• one parent assumes complete responsibility for the children when they are with them,
• each parent has no say over the actions and decisions of the other parent when the children are in that parent's care,
• there are no expectations of flexibility between the parents,
• neither parent can plan activities for the children when they are with the other parent,
• communication between the parents is minimized and children are not asked to pass messages to the other parent, and
• when the parents must communicate, they do so by writing in a book that the children take with them from one home to the other.

An example of parallel parenting being ordered can be found in Sodhi v Sodhi, a 2014 decision of the Supreme Court.

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

Parenting time

Guardians can make agreements about how the child's parenting time will be shared between them under section 44 of the Family Law Act. These agreements:

• should be written down whenever possible, and
• can only been made when the guardians have separated or are about to separate.

Written agreements can be filed in court under section 44(3) of the act and, once filed, can be enforced just like they are orders of the court.

When guardians can't agree on how parental responsibilities for a child will be shared, they can apply to court to get an order about how they'll be shared under section 45 of the Family Law Act. Parents who are married can also apply for an order about how a child's parenting time will be shared under section 16.1 of the Divorce Act.

Orders about parenting time are either interim or final, and, like agreements, cannot be made until the parents have separated. An "interim order" is an order that has been made after a court proceeding has been started but before the court proceeding has wrapped up with a final order made after trial or by a final order that is made with the agreement of the parties. Interim orders can be changed by other interim orders. A "final order" is an order that is made by a judge either after a trial or by the agreement of the parties. Final orders can be changed too, providing there has been an important change in the circumstances of a party or a child, but are otherwise intended to be permanent.

It's important to know that interim orders are intended to be a sort of rough-and-ready solution to the legal issues parents have to address after separation, and are only meant to last until a final order is made. They are short-term solutions intended to deal with immediate problems about things like where a child will live and the role each parent will play in raising the child. While interim orders 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 that are 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 parents get on with their court proceeding.

However, the wrongful conduct of a parent will not establish a status quo that the court is likely to respect. If a parent is seeing a child too little or if the other parent is withholding parenting time, the court will act on an interim basis to expand the time the parent has with the child; if a parent has just picked up and moved away with a child, without an order or the agreement of the other parent to do so, the court may order the child to be returned.

It can otherwise be difficult to change a child's parenting time once a stable arrangement has been established, and both parents should be 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.

Factors

There are two sets of factors that judges and arbitrators will consider in making orders about how children's parenting time will be allocated between their parents, the factors set out in the legislation and the additional factors that have developed through the courts. As far as the legislation is concerned, the most important factors are the children's best interests. Section 16 of the Divorce Act says that:

(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. ...

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

The list of Divorce Act best-interests factors is set out in section 16(3), and the list of additional factors to be considered when assessing the impact of family violence is set out in section 16(4).

Section 37 of the Family Law Act says this:

(1) 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. ...

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

The list of Family Law Act best-interests factors is set out in section 37(2), and the list of additional factors to be considered when assessing the impact of family violence is set out in a separate section, section 38.

The courts have expanded these factors into the following general principles when determining how the children's parenting time will be allocated. The court may consider:

• the age, maturity and independence of the children,
• which parent was the children's primary caregiver during the relationship,
• the distance and travel time between the parents' homes,
• the parents' work schedules and the children's school schedule and schedule of extracurricular activities,
• each parent's flexibility and willingness to cooperate with the other parent about parenting time and accommodate unexpected changes,
• whether siblings should be kept together, which is usually the case although siblings can be separated if it is in their best interests to do so,
• whether the children are in a stable and satisfactory setting, and if so, whether the children's long-term interests justify upsetting a stable arrangement,
• each parent's character, fitness, and overall parenting capacity, depending on the circumstances of the case and as long as issues like this are genuinely important and relevant,
• each parent's mental and physical capacity, again depending on the circumstances of the case and as long as issues like this are genuinely important and relevant,
• the impact of any family violence, and the steps taken by the parent responsible for the family violence to prevent further family violence from occurring, and
• the wishes of the children, particularly those of children who are 10 or 11 years old or older, although the court isn't required to make the order the children would prefer.

There really is no standard pattern of parenting time, although a trend toward shared parenting time has developed in case law over the past several years. All of these factors, including the best-interests factors, usually get taken into account when a parenting time schedule is designed, and, in general, a parenting time schedule can be as creative as the flexibility of the parents 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.

Shared parenting time

Shared parenting time is a term used by the federal Child Support Guidelines to describe a kind of parenting arrangement in which the children spend an equal or almost equal amount of time with each parent. Where parents have shared parenting time, 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 parenting time arrangements 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 and maturity of the children, the parents' work schedules, and the schedules of the children's activities.

In many ways, this is an ideal way to share the children's parenting time as the children wind up spending an equal amount of time with each parent, have an equal opportunity to bond with each parent, and have an equal opportunity to be parented by each parent. Shared parenting time usually requires that:

• the parents have good communication skills, usually resolve problems easily, and share information about the children and their wellbeing,
• the parents have a track record of being 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 arrangement. The strain of maintaining good communication with the other parent can be challenging, and it can be expensive to maintain a full set of clothing, shoes, toiletries, and supplies at each house, never mind a similar variety of entertainment and sports equipment.

Split parenting time

Split parenting time is a term used by the federal Child Support Guidelines to describe a kind of parenting arrangement in which one or more of the children live mostly with each parent.

This is a fairly unusual arrangement as it requires siblings to be separated for large amounts of time and there is a risk that the children 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 siblings are constantly fighting or are otherwise at each other's throats, or when one child has a particular attachment to a parent that isn't wholly shared by the other children. In such cases, a parenting assessment, prepared under section 211 of the Family Law Act, confirming that the children should be split apart may be essential.

Specified and unspecified parenting time

Most agreements and orders about parenting time will say that the children will have a specific schedule of time with one parent, or a specific schedule of time with both parents. Some provide a set schedule, and allow for additional parenting time as the parents may agree, usually by saying that a particular parent will have "such further and other time with the children as the parties may agree." Still others are much more ambiguous, sometimes to the point that the agreement or order doesn't really set out a parenting time schedule at all. Agreements and orders like this may say something like this:

Parent A will have parenting time with the children as Parent A and Parent B may agree.

Parent A will have liberal and generous parenting time with the children.

Parent A will have parenting time with the children as the children may agree.

This sort of unspecified parenting time is appropriate where parents 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, an agreement or order like this may not be appropriate, particularly if there is a chance that one parent will withhold the child from the other when parenting time is requested. In fact, agreements and orders like this may be a recipe for disaster.

Specified parenting time is, without a doubt, the more common parenting arrangement. Agreements and orders for specified parenting time will state at what times and dates the children will be with one or both parents, usually with enough detail that the children's parenting schedule can be mapped out in a calendar for years. Agreements and orders like these can be quite complex, dividing holidays, birthdays, Mothers' Day and Fathers' Day, special school days, and so on. Agreements and orders for specified parenting time can be extraordinarily detailed and address pretty much every kind of issue and event that you can think of, or be shorter and more general. In general, the more difficult the parents' relationship is after separation, the more likely it is that their agreement or order will specify the parenting schedule in more 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.

Birdnesting

"Birdnesting" refers to a parenting schedule where the children live full-time in the family home and it's their parents who move in and out when it's the children's time with them. This type of arrangement is more common when parents are in the early stages of their separation and don't have their own homes, and when both parents believe that the children's need for stability requires them to stay permanently in the former family home.

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

Birdnesting is a term that has been created by lawyers and judges, like the terms "primary residence" and "parallel parenting." Birdnesting is not a term you will find in the Family Law Act or the Divorce Act.

Conditional parenting time

A parent's parenting time can be made conditional upon the parent doing or not doing something. If a parent fails to meet any of the conditions of their parenting time with the child, the parent's parenting time may reasonably be denied.

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

• was a heavy smoker, the condition being to not expose the child to second-hand smoke,
• used illicit drugs or alcohol, the condition being to not consume drugs or alcohol while with the child and for a certain number of hours or days before seeing the child, and
• was a dangerous driver, the condition being to not drive with the child in the car.

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

It is up to the parent saying that the other parent's parenting time should be conditional to prove why it should be conditional and that the condition they seek to impose is in the best interests of the child.

Supervised parenting time

Parenting time may be restricted where there is a concern that the child may be harmed by spending time with a parent. In extreme cases, the court may require that a parent's parenting time be supervised by a third party. A supervisor may be the other parent, a grandparent, another relative, a person who specializes in supervising parenting time, or someone else altogether. There are even companies that provide supervised parenting time services, although these companies charge for their service and are generally only found in larger urban centres.

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

• there has been a history of child abduction or attempts to abduct the child,
• there is a history of family violence against the child or the other parent,
• the parent has attempted to damage the child's relationship with the other parent, or otherwise interfere with the child's relationship with that parent, or
• there are serious concerns about the parent's ability to properly care for the child, including 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 a parent's parenting time with a child. It is up to the parent saying that the other parent's parenting time must be supervised to prove why it should be supervised and that supervision is in the best interests of the child.

Contact

Under the provincial Family Law Act, the time people who are not guardians have with a child, including parents who are not guardians, is called "contact." The language is the same under the federal Divorce Act, except that "contact" refers to the time people who are not married spouses have with a child.

Contact under the Family Law Act

The Family Law Act doesn't say much about contact compared to what it has to say about parental responsibilities and parenting time, except to say that anyone can apply for contact, including parents who are not guardians, grandparents, other family members, and anyone else really. This is the definition of contact from section 1 of the act:

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;

It's important to know that someone who has contact with a child has none of the responsibilities and entitlements that a guardian does. Among other things, they do not have:

• responsibility for making day-to-day decisions affecting the child when the child is with them,
• day-to-day care, control and supervision of the child when the child is with them, or
• the right to get health, education and other information about the child from other people.

Contact under the Divorce Act

The Divorce Act has just as much to say about contact as the Family Law Act. The definition of "contact" in section 2(1) isn't very helpful, and just says this:

contact order means an order made under subsection 16.5(1);

Section 16.5(1) says that:

A court of competent jurisdiction may, on application by a person other than a spouse, make an order providing for contact between that person and a child of the marriage.

Just like the Family Law Act, someone who has contact under a Divorce Act order does not have:

• the authority to make day-to-day decisions affecting the child when the child is with them, or
• the right to get information about the child's wellbeing from other people, including information about the child's health and education and other information.

Making arrangements for contact

People can make arrangements that someone have contact with a child in a number of ways. They can make an agreement with the child's parents, using negotiation, mediation, or a collaborative settlement process, or, if they can't agree, the person seeking contact can go to court or the person and the child's parents can decide to use arbitration. Arbitration, like mediation, is a process that everyone involved needs to agree to use. However, unlike mediation, the arbitrator will make a final and binding decision if an agreement cannot be reached. You can get more information about negotiation, mediation, collaborative settlement processes and arbitration in the chapter Resolving Family Law Problems out of Court, and more information about litigation in the chapter Resolving Family Law Problems in Court.

Under section 58(1) of the Family Law Act, the guardian of a child can make a written agreement with someone who is not a guardian that they have contact with a child. (Under section 58(2), agreements like these are only good if they are made with all of the child's guardians who have parental responsibility for making decisions about the people with whom the child may associate.) Written agreements can be filed in court under section 58(3) of the act and, once filed, can be enforced just like they are orders of the court.

If agreement isn't possible, the person asking for contact can apply for a contact order under section 59 of the Family Law Act or under section 16.5 of the Divorce Act. It's important to remember that people who are asking for contact orders under the Divorce Act can only ask for those orders if:

• there is an existing court proceeding between married spouses under the Divorce Act, and
• the court first gives them permission to apply for contact under section 16.5(3) of the Divorce Act.

There are no similar restrictions on people who are asking for contact orders under the Family Law Act.

Factors

There are two sets of factors that judges and arbitrators will consider in making orders about contact with children, the factors set out in the legislation and the additional factors that have developed through the courts. As far as the legislation is concerned, the most important factors are the children's best interests. Section 16 of the Divorce Act says that:

(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. ...

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

The list of Divorce Act best-interests factors is set out in section 16(3), and the list of additional factors to be considered when assessing the impact of family violence is set out in section 16(4).

Section 37 of the Family Law Act says this:

(1) 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. ...

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

The list of Family Law Act best-interests factors is set out in section 37(2), and the list of additional factors to be considered when assessing the impact of family violence is set out in a separate section, section 38.

The courts have expanded these factors into the following general principles when determining if someone should have contact with a child and, if so, the extent of their contact with the child. The court may consider:

• the age, maturity and independence of the children,
• the child's history of spending time with the person seeking contact,
• the nature and strength of any connection between the child and the person seeking contact,
• any benefits the person seeking contact offers to the child's cultural, linguistic and spiritual upbringing and heritage,
• the nature of the relationship between the person seeking contact and the child's parents, including the presence of any conflict,
• how the contact can be accommodated into any parenting time schedule that may exist, including whether it is appropriate to set the person's contact with the child during a particular parent's parenting time,
• the mental and physical capacity of the person seeking contact, depending on the circumstances of the case and as long as issues like this are genuinely important and relevant,
• the impact of any family violence, and the steps taken by the person seeking contact to prevent further family violence from occurring, and
• the wishes of the children, particularly those of children who are 10 or 11 years old or older, although the court isn't required to make the order the children would prefer.

There really is no standard pattern of contact, although contact is usually shorter in duration and less frequent than the parenting time parents have, and when the person seeking contact is a relative of the child's parent, their contact will usually come out of that parent's parenting time. All of these factors, including the best-interests factors, will be taken into account when contact is allowed and a schedule of contact is designed. In general, a schedule of contact can be as creative as the circumstances and common sense allow.

Conditional contact

A person's contact with a child can be made conditional upon the person doing or not doing something. If the person fails to meet any of the conditions of their contact with the child, their contact may reasonably be denied.

In general, the court must have some reasonable concerns about a person's lifestyle or behaviour before an order for contact will be conditional. In fact, where such concerns exist, the person is more likely to be denied contact with the child altogether than to get contact on conditions. Common conditions include limits on:

• the sort of activities the person can attend, access or undertake with the child,
• the sort of food and drink the person can provide to the child,
• the places where the contact must, or must not, occur,
• the person's ability to drive with the child in the car, and
• the person's use of illicit drugs or alcohol.

It is up to the parent saying that the person's contact should be conditional to prove why it should be conditional and that the conditions they seek to impose are in the best interests of the child.

Supervised contact

A person's contact with a child can be allowed with the requirement that it be supervised where there is a concern that the child may be harmed by spending time with the person. A supervisor may be a parent, a grandparent, another relative, a person who specializes in supervising parenting time, or someone else altogether. There are even companies that provide supervised contact services, although these companies charge for their service and are generally only found in larger urban centres.

In general, the court must have some reasonable concerns about the threat a person poses to the wellbeing of the child before an order for contact will be made on the condition that the contact is supervised. In fact, where such concerns exist, the person is more likely to be denied contact with the child altogether than to get contact on the condition that it is supervised.

It is up to the parent saying that the person's contact should be supervised to prove why it should be supervised and that the supervision of the person's contact is in the best interests of the child.

Assessments and reports about children and parenting after separation

Making decisions about parenting after separation can be difficult, especially when parents are in high levels of conflict with each other, when their children are very young, when one or more of their children have special needs, and when one or both parents struggle with family violence, the use of alcohol or illicit drugs, and personality and other mental health disorders. It's hard for parents and it's hard for judges and arbitrators.

While both the Divorce Act and the Family Law Act say that the only consideration when making arrangements about decision-making, parenting time and contact is the best interests of the child, and provide lists of helpful factors that go into deciding the arrangements for parenting and contact that are in the child's best interests, sometimes what's needed is the input of a neutral professional, usually a mental health professional like a psychologist, a clinical counsellor or a social worker. This input is usually provided through the different kinds of assessments and reports, like parenting assessments and views of the child reports, that are available under the Family Law Act. Other helpful reports can include psychological-educational reports about children's learning needs, reports from counsellors working with a parent or a child, medical assessments, and reports from physiotherapists and occupational therapists.

Parenting assessments

Parenting assessments, which are sometimes called "section 211 reports" and used to be known as "custody and access reports," are prepared by mental health professionals. They are available when parents agree that an assessment should be prepared, or when a judge or arbitrator orders that an assessment should be prepared under section 211(1) of the Family Law Act. Section 211 says this:

(1) A court may appoint a person to assess, for the purposes of a proceeding under Part 4 [Care of and Time with Children], one or more of the following:

(a) the needs of a child in relation to a family law dispute;

(b) the views of a child in relation to a family law dispute;

(c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.

(2) A person appointed under subsection (1)

(a) must be a family justice counsellor, a social worker or another person approved by the court, and

(b) unless each party consents, must not have had any previous connection with the parties.

(3) An application under this section may be made without notice to any other person.

(4) A person who carries out an assessment under this section must

(a) prepare a report respecting the results of the assessment,

(b) unless the court orders otherwise, give a copy of the report to each party, and

(c) give a copy of the report to the court.

(5) The court may allocate among the parties, or require one party alone to pay, the fees relating to an assessment under this section.

A "full" parenting assessment consists of the mental health professional's report on all of the things listed in section 211(1): the needs of a child; the views of a child; and, the ability and willingness of a party to satisfy the child's needs. However, parents can agree, and judges and arbitrators may order, that the parenting assessment just report on one or two of these subjects. In most cases, the professional will:

• speak to each of the parents, often more than once,
• speak to one or more other people who know the family or the children, like teachers, family members, social workers and therapists,
• speak to the children, depending on the children's age and maturity,
• observe each of the parents interacting with the children, and
• review reports and other documents about the parents, the family or the children, like psychological-educational reports, medical reports, and materials that have been filed in court.

(Psychologists will also usually ask the parents to complete one or more tests that are designed to provide information about the parents' personalities and parenting styles, and see whether family violence is present.)

A full parenting assessment will make recommendations about the arrangements for parenting and contact that the professional believes to be in the bests interests of the children. They can also be asked to look at, and make recommendations about, specific issues such as a parent's mental health, a parent's capacity to care for the children or the impact of family violence.

Parenting assessments can help parents who are trying to resolve issues about parenting after separation out of court, through negotiation, collaborative settlement processes, and mediation; in fact, parenting assessments often provide the input parents need to reach a settlement. They're also useful when parents are dealing with disagreements about parenting through litigation and arbitration. It's important to know, however, that while judges and arbitrators almost always appreciate the opinion of the professional who prepared the assessment, they're not required to accept the professional's recommendations.

Parenting assessments are available from Family Justice Counsellors, government employees attached to the Provincial Court, for free. Because these assessments are free, there's a huge demand for them and you can expect to have to wait months for the assessment process to begin and months for the process to complete.

Parenting assessments are also available privately, from psychologists, clinical counsellors and social workers. These reports are usually completed faster than the reports of Family Justice Counsellors, but the cost can range from $10,000 to $2,000, depending on the circumstances and complexity of the case, the number of children, and whether the assessor must travel to meet the family. Note that these are the costs for a private professional to prepare a section 211 report, but the costs will increase if another expert is asked to review the report or prepare a second opinion, and also if any experts are cross-examined on their reports.

Evaluative views of the child reports

Evaluative views of the child reports, which are sometimes called "hear the child reports" and "voice of the child reports," are prepared by mental health professionals under section 211(1)(b) of the Family Law Act. They are available when parents agree that a report should be prepared, or when a judge or arbitrator orders that a report should be prepared. In most cases, the professional will:

• speak to each of the children, sometimes more than once, and
• review reports and other documents about the parents, the family or the children.

These reports are important because both the Divorce Act and the Family Law Act include children's views and preferences among the factors that must be taken into account when deciding the arrangements for parenting and contact that are in the best interests of the children. (You can find this factor at section 16(3)(e) of the Divorce Act and at section 37(2)(b) of the Family Law Act.) They will describe the children's views, preferences and wishes and provide the mental health professional's opinion of the children's views, preferences and wishes. The professional might provide an assessment, for example, about the strength and consistency of the children's views, the extent to which the children's preferences are in their best interests, and the extent to which what the children have said reflects what the children actually think.

Parents, judges and arbitrators often find it helpful to hear what the children have to say about things from a neutral professional. Like parenting assessments, these reports can provide the missing piece of the puzzle that helps parents finally agree on parenting schedules and decisions about issues like where the children go to school, which extracurricular activities they participate in, where they live, and how much time they spend with relatives.

Evaluative views of the child reports are available from Family Justice Counsellors for free. However, there's a huge demand for these reports, just like there is for parenting assessments, and you can expect to have to wait months for the report to be available.

Evaluative views of the child reports are also available privately, from psychologists, clinical counsellors and social workers. These reports are usually completed faster than the reports of Family Justice Counsellors, but the cost can range from $10,000 to $20,000 for the full section 211 report to be done. As noted above, this cost does not include the costs of any review or second opinions by another expert, nor does it include the costs of cross-examination of an expert.

Non-evaluative views of the child reports

Non-evaluative views of the child reports, which are also sometimes called "hear the child reports" and "voice of the child reports," are prepared by mental health professionals, by lawyers, and by anyone else who's been trained to speak with children and report on their views. People who aren't mental health professionals may not be able to provide a report about the views of children younger than five or six, depending on the child's maturity and verbal skills.

These reports are different from evaluative views of the child reports because the person who speaks to the children isn't being asked to provide an opinion or an assessment of what the children have said, they're just being asked to describe what the children have told them. The person who speaks to the children will usually ask the children questions about life before their parents separated, what their parents' separation was like, life after separation, and what they would like for the future. The person who speaks to the children can also be asked to focus on specific issues, like the children's experience of the conflict between their parents, the children's preferred parenting schedule, or how much time the children would like to spend with family members.

Non-evaluative views of the child reports are available under sections 37(2)(b) and 202 of the Family Law Act. They are available when parents agree that a report should be prepared, or when a judge or arbitrator orders that a report should be prepared. In most cases, the person preparing the report will speak to each of the children once, or twice at most. Because the person preparing the report isn't providing an opinion, they won't be interested in reading reports about the children, reviewing materials filed in court, speaking to the parents, or speaking to people who know the family and the children. All they're doing is describing what the children have told them.

These reports can be used when parents are trying to resolve parenting issues out of court and when they're dealing with those issues in court. Like parenting assessments and evaluative views of the child reports, these reports can provide the missing piece of the puzzle that helps parents finally reach an agreement or tip the balance for the judge or arbitrator who's being asked to decide which arrangements for parenting and contact are best for the children.

Non-evaluative views of the child reports are available privately, from psychologists, clinical counsellors, social workers and lawyers. These can be completed very quickly, sometimes on the same day that they're requested, and generally cost about $1,000 to $1,500 per child, depending on how much the child has had to say to the person who speaks with them. The BC Hear the Child Society has a roster of professionals who are trained to prepare non-evaluative views of the child reports, however not every professional who prepares these reports is a member of the society and therefore included in their roster.

Resources and links

Legislation

• Divorce Act
• Family Law Act
• Family Law Act Regulation
• Provincial Court Family Rules
• Supreme Court Family Rules

Resources

• Section 211 toolkit from Rise Women's Legal Centre

Links

• Parenting After Separation (PAS) Courses information
• Parenting After Separation course from the BC Ministry of Attorney General's Family Justice Services Division
• Guardianship, Parenting Arrangements, and Contact from Dial-a-Law by the People's Law School
• How to Become a Child's Guardian fact sheet from Legal Aid BC
• Parenting and Guardianship from Legal Aid BC
• Living Together or Living Apart
• Department of Justice's guide Making plans: A guide to parenting arrangements after separation or divorce

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 23 August 2022.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.