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Difference between revisions of "Children and Parenting after Separation"
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Children and Parenting after Separation (view source)
Revision as of 00:09, 15 January 2017
, 00:09, 15 January 2017This page has now been fully reviewed. There are a couple of issues I am having with the lay-out of the page, e.g. external links, and I will be emailing Nate directly.
Sam Rapoport (talk | contribs) (This page has now been fully reviewed; however, I would like the chance to re-read before confirming the legal accuracy date. I hope to do so this week.) |
Sam Rapoport (talk | contribs) (This page has now been fully reviewed. There are a couple of issues I am having with the lay-out of the page, e.g. external links, and I will be emailing Nate directly.) |
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If parties disagree over which act applies, be prepared to understand what ''paramountcy'' is. The doctrine of paramountcy says that provincial laws must give way to federal laws if there is a conflict between the two, even if both laws are otherwise valid and even if either could apply. There are a number of cases that consider which of these two Acts should apply and how they work together. A good summary is found in [http://canlii.ca/t/gf1gz Jirh v. Jirh]'', 2014 BCSC 1973 and another good summary is found in B.D.M. v. A.E.M., 2014 BCSC 453 http://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc453/2014bcsc453.html?resultIndex=1. | If parties disagree over which act applies, be prepared to understand what ''paramountcy'' is. The doctrine of paramountcy says that provincial laws must give way to federal laws if there is a conflict between the two, even if both laws are otherwise valid and even if either could apply. There are a number of cases that consider which of these two Acts should apply and how they work together. A good summary is found in [http://canlii.ca/t/gf1gz Jirh v. Jirh]'', 2014 BCSC 1973 and another good summary is found in B.D.M. v. A.E.M., 2014 BCSC 453 http://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc453/2014bcsc453.html?resultIndex=1. | ||
While both the ''Divorce Act'' and the ''Family Law Act'' speak about the best interests of children, the ''Divorce Act'' contains the concept of ''maximum contact'' (between the child and both parents), that is not included in the ''Family Law Act''. Maximum | While both the ''Divorce Act'' and the ''Family Law Act'' speak about the best interests of children, the ''Divorce Act'' contains the concept of ''maximum contact'' (between the child and both parents), that is not included in the ''Family Law Act''. Maximum contact is not a concept that is included in the ''Family Law Act''; in fact, the ''Family Law Act'' says that there is no particular parenting plan or arrangement that “is presumed to be in the best interests of a child.” | ||
====Custody and access==== | ====Custody and access==== | ||
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====Guardianship and parental responsibilities==== | ====Guardianship and parental responsibilities==== | ||
The ''Family Law Act'' talks about people who are ''guardians''. Guardians are usually, but not always, the parents of a child, including people who are parents because of an assisted reproduction agreement. Guardians generally | The ''Family Law Act'' talks about people who are ''guardians''. Guardians are usually, but not always, the parents of a child, including people who are parents because of an assisted reproduction agreement. Guardians generally, but not always, have ''parental responsibilities'' for a child, which means that they can make decisions for and about a child. The decisions that guardians make about a child must be in that child's best interests. | ||
A parent who isn't a guardian can become a guardian by an agreement signed by all of the child's guardians. However, if the parent and the guardians can't agree, the parent will have to apply to court to be appointed as a guardian. | A parent who isn't a guardian can become a guardian by an agreement signed by all of the child's guardians. However, if the parent and the guardians can't agree, the parent will have to apply to court to be appointed as a guardian. | ||
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A Custody and Access Report is a report that is prepared by a neutral third party, usually a psychologist or registered clinical social worker. This is an older term and in most cases, the courts will be making an order for a “section 211 report,” which is a report prepared pursuant to section 211 of the ''Family Law Act''. | A Custody and Access Report is a report that is prepared by a neutral third party, usually a psychologist or registered clinical social worker. This is an older term and in most cases, the courts will be making an order for a “section 211 report,” which is a report prepared pursuant to section 211 of the ''Family Law Act''. | ||
The B.C. Supreme Court discussed the purposes of the old custody and access reports in a 2001 case called ''[http://canlii.ca/t/4xfd Gupta v. Gupta]'', 2001 BCSC 649 | The B.C. Supreme Court discussed the purposes of the old custody and access reports in a 2001 case called ''[http://canlii.ca/t/4xfd Gupta v. Gupta]'', 2001 BCSC 649. The Court's comments apply just as well to reports prepared pursuant to section 211 of the ''Family Law Act'': | ||
<blockquote>"The purpose of a [court-ordered report] ... is to assist the Court in determining the issues before it, including the paramount of issues of what is in the best interests of the children. The section itself contemplates that the person doing the investigation must be approved by the Court, and must be independent or neutral. ... The investigation is carried out for the purposes of the Court, and in the best interests of the children, and not those of the partial parents who are embroiled in what is seen as the dispute of their lives, who generally represent the extremes of every issue, and whose evidence is often found to be coloured to say the least."</blockquote> | <blockquote>"The purpose of a [court-ordered report] ... is to assist the Court in determining the issues before it, including the paramount of issues of what is in the best interests of the children. The section itself contemplates that the person doing the investigation must be approved by the Court, and must be independent or neutral. ... The investigation is carried out for the purposes of the Court, and in the best interests of the children, and not those of the partial parents who are embroiled in what is seen as the dispute of their lives, who generally represent the extremes of every issue, and whose evidence is often found to be coloured to say the least."</blockquote> | ||
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Section 37(2)(b) of the ''[http://canlii.ca/t/52cd2 Family Law Act]'' requires the court to consider the views of the child. Section 202 allows the court to decide ''how'' the child’s views are heard and presented. | Section 37(2)(b) of the ''[http://canlii.ca/t/52cd2 Family Law Act]'' requires the court to consider the views of the child. Section 202 allows the court to decide ''how'' the child’s views are heard and presented. | ||
Third parties can interview a child and prepare a "views of the child report" or a non-evaluative | Third parties can interview a child and prepare a "views of the child report" or a non-evaluative "Hear the Child Report". | ||
A Hear the Child Report presents a child’s views to the court. In British Columbia, the [http://www.hearthechild.ca Hear the Child Society] has a roster of interviewers who prepare non-evaluative reports. | A Hear the Child Report presents a child’s views to the court. In British Columbia, the [http://www.hearthechild.ca Hear the Child Society] has a roster of interviewers who prepare non-evaluative reports. | ||
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According to s. 16(1) of the ''Divorce Act'', the court can make an order for ''access'' or ''custody'' on the application of a spouse or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application. | According to s. 16(1) of the ''Divorce Act'', the court can make an order for ''access'' or ''custody'' on the application of a spouse or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application. | ||
Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before the grandparents can step in; there must be an existing proceeding in which to bring the application. A grandparent cannot start a court proceeding under the ''Divorce Act'', since the | Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before the grandparents can step in; there must be an existing proceeding in which to bring the application. A grandparent cannot start a court proceeding under the ''Divorce Act'', since the Act only applies to disputes between married spouses. | ||
====The ''Family Law Act''==== | ====The ''Family Law Act''==== | ||
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*Non-parents may also have to demonstrate that they offer some positive benefit to the child before access or contact will be allowed, and they must demonstrate that the child's time with them will be in the child's best interests. Normally, grandparents and other non-parents are allowed only the amount of access or contact that the guardians will agree to. | *Non-parents may also have to demonstrate that they offer some positive benefit to the child before access or contact will be allowed, and they must demonstrate that the child's time with them will be in the child's best interests. Normally, grandparents and other non-parents are allowed only the amount of access or contact that the guardians will agree to. | ||
Where both guardians are still in the picture, the court will usually require that grandparents' access or contact occurs during the time that their child has the grandchild. In other words, maternal grandparents will usually have access or contact | Where both guardians are still in the picture, the court will usually require that grandparents' access or contact occurs during the time that their child has the grandchild. In other words, maternal grandparents will usually have access or contact during the mother's time with the child and the paternal grandparents will have access or contact during the father's time with the child. See the B.C. Provincial Court decision called ''N.H. v. D.H.'', 2013 BCPC 413 http://www.canlii.org/en/bc/bcpc/doc/2013/2013bcpc413/2013bcpc413.html?resultIndex=1 | ||
Where only one guardian is in the picture, the court will usually determine what access or contact the grandparents ought to have independently of the interests of the guardian. | Where only one guardian is in the picture, the court will usually determine what access or contact the grandparents ought to have independently of the interests of the guardian. | ||
