Difference between revisions of "Children and Parenting after Separation"

This introductory section provides an overview of the law on the care of children after separation, and looks at traditional and developing concepts in this area of the law. It also discusses the interests that grandparents and other non-parents or guardians might have regarding the care of children. Other sections of this chapter look more closely at some of the non-legal issues involved with the care of children, including: [[Parenting after Separation|parenting after separation]], [[Guardianship, Parenting Arrangements and Contact|guardianship and contact]], [[Custody and Access|custody and access]], [[Changing Family Law Orders and Agreements Involving Children|making changes to orders and agreements involving children]], and the problem of [[Estranged and Alienated Children| estrangement and alienation]].  

Other legal issues relating to children, such as family violence, naming, and adoption are discussed in the chapter [[Other Family Law Issues]].

The [[Parenting after Separation]] section talks about some very important issues that don't involve legislation or the court, but are equally important: how to protect children from the conflict between their parents, how to develop parenting plans, and how to locate resources that are available to separating and separated parents. When parents separate, there is a lot more at stake than just where the children are going to be living tomorrow. Parents have an obligation to think in the long-term, and take a perspective that sees years down the road. How is their conflict going to affect their children? How can both parents maintain a meaningful role in their children's lives? How will the children adapt to the separation? When the children are older and look back on their childhood, what will they think of the separation? And, perhaps most importantly, how can the children best be helped to grow and mature into adults with families of their own?

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 [http://canlii.ca/t/g6700 ''B.D.M. v. A.E.M.''], 2014 BCSC 453.  

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.

**(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 is also very important to understand that a guardian's parenting time with a child is entirely separate from his or her obligation to pay child support. Child support is not a fee paid or charged to see a child. It is never appropriate to withhold parenting time because a guardian missed a child support payment, nor is it ever appropriate to stop paying child support because parenting time has been withheld. The courts do not look kindly on guardians who have engaged in this sort of conduct.

A recent example of parallel parenting being ordered is ''[http://canlii.ca/t/g8rp5 Sodhi v. Sodhi]'', 2014 BCSC 1622.

# Custody and access reports;

# Section 211 reports; or

# Views of the child reports.

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''.

<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>

Once the assessment is finished, a process that can take anywhere from two months to five months, the assessor sends the assessment to the parties, as well as to the court if the assessment was court ordered. These assessments can be used in two ways: to encourage settlement; and, at trial, to persuade the court that the parenting proposal of one parent or guardian is to be preferred over that of the other. The person who prepared the assessment can be called to testify at the trial and will be subject to cross-examination as to how he or she conducted the assessment and reached his or her conclusions and recommendations.

It is important to remember that the function of the assessor in court is to present his or her recommendations and the evidence that he or she relied on, such as test scores and interview observations, in coming to those recommendations. At the end of the day, it is always up to the judge to decide the parenting arrangements for the children. A needs of the child assessment is merely the assessor's recommendation to the court based on his or her particular expertise as an experienced psychologist, psychiatrist, or family justice counsellor; the assessment is not a final determination of the issue.

For information on to how get a needs of the child assessment, see [[How Do I Get a Needs of the Child Assessment?]] It's located in the ''How Do I?'' part of this resource, in the section ''Other Litigation Issues''.

There is confusion between a “views of the child report” (which is a section 211 report) and a voice of the child or Hear the Child Report.  

Third parties can interview a child and prepare a "views of the child report" or a non-evaluative "Hear the Child Report".

A "views of the child report" may contain opinion and recommendations in addition to communicating a child's views.

#where one or both of the guardians of the children are dead,

#where one or both of the guardians have abandoned the children or the care of the children,

#where there are serious concerns about the fitness of the guardians to care for the children, or

#where they are being denied time or involvement with the children.

#getting or maintaining contact with the children,

#supervising the parenting of the children when they are with a guardian, or

#being appointed as a guardian of the children.

Two laws might apply to non-parents seeking guardianship of or contact with children. Where the children's parents or guardians are already in court about the children, that will be either the federal ''[[Divorce Act]]'', if the guardians are or were married, or the provincial ''[[Family Law Act]]''. If the parents or guardians are not involved in a court proceeding between each other, it will be the ''Family Law Act''.

#the applicant's relationship to the child,

#the other children currently in the care of the applicant,

#any history of family violence that might affect the child, and

#any previous civil or criminal court proceedings related to the best interests of the child.

Nevertheless, grandparents and other non-parents who are seeking custody or guardianship of a child will face a difficult challenge, especially where both guardians are still in the picture, even if they have been actively involved in caring for the children themselves. Since actual, concrete harm must usually be shown before grandparents are awarded custody, it can be critical to gather as much documentary evidence as possible. Some helpful sources include: police records; the records of social workers involved with the children; files from the Ministry for Children and Families; and, a psychologist's report.

There is a big difference between seeking custody or guardianship and seeking access or contact. In custody cases, the courts are concerned with the fundamental living arrangements and the health and welfare of the children. In court proceedings for access or contact, the parent usually has custody and no one is challenging the right of the parent to control his or her child's upbringing. As a result, the court will place an even greater emphasis on the parent's discretion and judgment.