Anonymous

Difference between revisions of "Children and Parenting after Separation"

From Clicklaw Wikibooks

Children and Parenting after Separation (view source)

Revision as of 14:43, 10 March 2013

327 bytes removed ,  14:43, 10 March 2013
no edit summary
Line 1: Line 1:
{{JP Boyd on Family Law TOC}}
{{JP Boyd on Family Law TOC}}


When a couple involved in a family law dispute has children, they must make decisions about four important issues: where the children will live, how important parenting decisions will be made, how often each parent will see the children and how the children will be provided for. This chapter will review the first three of these issues in detail. The fourth issue is covered in the Child Support chapter.
When a couple involved in a family law dispute has children, they must make decisions about four important issues: where the children will live, how parenting decisions will be made, how often each parent will see the children and how the children will be provided for. This chapter will review the first three of these issues in detail. The fourth issue is covered in the Child Support chapter.


This page provides an introduction to 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 rights and interests that grandparents and other non-parents might have in respect of someone else's children. Other legal issues relating to children, such as family violence, naming and adoption, are discussed in the ______ chapter.
This page provides an introduction to 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 rights and interests that grandparents and other non-parents might have in respect of someone else's children. Other legal issues relating to children, such as family violence, naming and adoption, are discussed in the ______ chapter.
Line 13: Line 13:
Most of the pages in this chapter talk about how the court makes these decisions and the laws that apply to different parents in different situations. The next page, Parenting after Separation, talks about some very important issues that don't involve the courts and the legislation but are equally important: protecting children from the conflict between their parents, examples of different parenting plans, and some of the parenting resources that are available to separating and separated parents.
Most of the pages in this chapter talk about how the court makes these decisions and the laws that apply to different parents in different situations. The next page, Parenting after Separation, talks about some very important issues that don't involve the courts and the legislation but are equally important: protecting children from the conflict between their parents, examples of different parenting plans, and some of the parenting 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, 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? And, perhaps most importantly, how can the children be best helped to grow and mature into adults with families of their own?
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 be best helped to grow and mature into adults with families of their own?


There's a lot more to dealing with the care and control of children after separation than what you'll find in the ''Divorce Act'' and the ''Family Law Act''. The romantic relationship between the parents may be over, but they'll always be parents no matter the nature of their relationship with each other. Parents owe a duty to their children to overcome their differences and always put their children first, no matter how hard it is to cope with the emotional and legal issues that arise from their separation.
There's a lot more to dealing with the care of children after separation than what you'll find in the ''Divorce Act'' and the ''Family Law Act''. The romantic relationship between the parents may be over, but they'll always be parents no matter the nature of their relationship with each other. Parents owe a duty to their children to overcome their differences and always put their children first, no matter how hard it is to cope with the emotional and legal issues that arise from their separation.


===The ''Divorce Act'' and the ''Family Law Act''===
===The ''Divorce Act'' and the ''Family Law Act''===


For married spouses, the law regarding about children after separaton is governed by the federal ''Divorce Act'' as well as the provincial ''Family Law Act''. For unmarried spouses and other unmarried couples, the only governing law is the ''Family Law Act''.
For married spouses, the law regarding about children after separation is governed by the federal ''Divorce Act'' as well as the provincial ''Family Law Act''. For unmarried spouses and other unmarried couples, the only governing law is the ''Family Law Act''. Although married spouses can ask for orders under both the ''Divorce Act'' and the ''Family Law Act'', because the two laws approach the care of children with different attitudes and different language, which will be described in a moment, it's best to pick one or the other.


STOPPED
===The Best Interests of the Children===


Married couples typically seek relief under both the federal and the provincial legislation. Typically, married couples make a claim under just the Family Relations Act when:
Whenever the court considers issues involving children, its first and foremost concern is the best interests of the children, not whatever the particular wishes of a parent might be, no matter how well-intentioned those wishes might be: it's not about you, it's about your kids. As a result, in any application concerning children you must show that the outcome you're looking for is the outcome which is in your children's best interests.


they do not yet wish to obtain an order for divorce;
Section 16 of the ''Divorce Act'' is about ''custody'' and ''access'' and says this:
when they cannot make a claim under the Divorce Act because, for example, they're not married or they haven't lived in British Columbia for at least one year; or,
they wish to proceed in the Provincial (Family) Court rather than in the Supreme Court.
Note that guardianship is not dealt with in the Divorce Act. In proceedings under that act, guardianship is considered to be an aspect of custody. Other than this one exception, there really aren't any significant differences between the Divorce Act and the Family Relations Act in terms of the law relating to custody and access.


===The Best Interests of the Children===
<blockquote><tt>(8)In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.</tt></blockquote>


Whenever the court considers issues involving children, its first and foremost concern is the best interests of the children, not whatever the particular wishes of a parent are, no matter how well-intentioned those wishes might be: it's not about you, it's about your kids. As a result, in any application concerning children you must show that the outcome you're looking for is the outcome which is in your children's best interests.
Section 37 of the ''Family Law Act'' is titled "Best interests of child" and goes into more detail than the ''Divorce Act'' about what children's "best interests" means:


Section 16 of the Divorce Act is about custody and access. Section 16(8) says this:
<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the child's health and emotional well-being;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child's views, unless it would be inappropriate to consider them;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the nature and strength of the relationships between the child and significant persons in the child's life;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the history of the child's care;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the child's need for stability, given the child's age and stage of development;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.</tt></blockquote></blockquote>
<blockquote><tt>(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.</tt></blockquote>


In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
In making decision about custody and access under the ''Divorce Act'', or parental responsibilities, parenting time and contact under the ''Famiy Law Act'', the court will take into account a whole range of factors, including some of the following:
Section 24 of the Family Relations Act is titled "Best interests of child are paramount" and goes into more detail than the Divorce Act about what children's "best interests" means:


When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances:
*Who looked after the child most of the time during the marriage?
(a) the health and emotional well being of the child including any special needs for care and treatment;
*Does the child have a stronger bond with one parent than the other?
(b) if appropriate, the views of the child;
*How much will each parent work to encourage the child to spend time with the other parent?
(c) the love, affection and similar ties that exist between the child and other persons;
*What plans do the parents have to look after and care for the child?
(d) education and training for the child;
*How well can the parents co-operate and communicate with each other?
(e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.
*How will the order proposed by the applicant affect the child?
In making decision about custody, guardianship and access, the court will take into account a whole range of factors, including some of the following:
*Will the proposed order be in the child's long-term best interests?
*Will the proposed order disrupt the child's present life? Is there an established status quo which the child has already settled into?
*Will the proposal disrupt the child's schooling, or take the child away from his or her friends and family?


Who looked after the child most of the time during the marriage?
You should bear in mind these quotes from Mr. Justice Spencer in ''Tyabji v. Sandana'', a 1994 decision of the British Columbia Supreme Court:
Does the child have a stronger bond with one parent than the other?
How much will each parent work to encourage the child to spend time with the other parent?
What plans do the parents have to look after and care for the child?
How well can the parents co-operate and communicate with each other?
How will the order proposed by the applicant affect the child?
Will the proposed order be in the child's long-term best interests?
Will the proposed order disrupt the child's present life? Is there an established status quo which the child has already settled into?
Will the proposal disrupt the child's schooling, or take the child away from his or her friends and family?
You should bear in mind these quotes from Mr. Justice Spencer in Tyabji v. Sandana, a 1994 decision of the British Columbia Supreme Court:


"Custody is not awarded in any sense to punish the parent who is deprived of it. There is no contest between parents to see who most deserves the children nor who was the more responsible for the break-up of the family unit."
<blockquote>"Custody is not awarded in any sense to punish the parent who is deprived of it. There is no contest between parents to see who most deserves the children nor who was the more responsible for the break-up of the family unit."</blockquote>
"Custody is a placement of the children with the person who, in the court's judgment, presents that prospect of care and upbringing which is in the best interests of the children."
<blockquote>"Custody is a placement of the children with the person who, in the court's judgment, presents that prospect of care and upbringing which is in the best interests of the children."</blockquote>
C. Custody and Guardianship After Separation
Once a couple separates physically, meaning when one parent actually leaves the house, under s. 34(1)(b) of the Family Relations Act the parent with whom the children stay for most of the time is considered to have custody of the children. This is sometimes called "de facto" custody of the children because the parent has custody of the children only because of the circumstances of the parents' separation, not because of a decision of the court or a separation agreement.


Under s. 27 of the Family Relations Act, parents have joint guardianship of their children while they live together, but, after they have separated:
===Custody and Guardianship After Separation===


the parents are considered to have joint guardianship of their children's estates; and,
The old ''Family Relations Act'' made presumptions about who would have custody and guardianship of the children after a couple had separated. In general, the person who had the children most of the time was said to have ''de facto'' custody and guardianship of the children, meaning having custody and guardianship as a matter of fact than because of a court order.
the parent with whom the children stay for most of the time is considered to have sole guardianship of the children's persons.
If a couple never lived together, under s. 27(5) the mother is presumed to have sole guardianship of both the child's estate and the child's person. The meaning of guardianship of the person of a child and guardianship of the estate of a child is discussed in the chapter Children > Guardianship.


De facto custody and guardianship may not mean a great deal, however, as they aren't legal concepts that the police will recognize and they don't create a permanent legal entitlement to custody, just a presumption which sometimes helps when the other parent has little or no involvement in the children's lives.
Under s. 39 of the new ''Family Law Act'', while parents are living together and after they separate, both of them are presumed to the guardians of their children. These parents are guardians in fact and in law and do not need a court order to give them guardianship of their children. Other people who are presumed to be guardians are:


==Traditional and Developing Legal Concepts==
#people who are ''parents'' under an assisted reproduction agreement; and,
#a parent who do have never lived with the other parent but "regularly cares" for his or her child.


It is safe to say that the old-fashioned legal ideas about the care and control of children are not going to change in the blink of an eye. However, both the courts and the governments are moving towards new ways of looking at these ideas in an effort to avoid some of the stereotypes and the win/lose mentality sometimes associated with those traditional ideas.
The ''Divorce Act'' does not make any presumptions about who has custody of the children after separation.


It often happens that a parent who isn't awarded custody feels that he or she has somehow "lost." Sometimes, this parent feels that his or her parenting role has been marginalized and that he or she is somehow the lesser parent of the two, or that his or her role is being trivialized as an "access parent." One of the new ideas is to use the phrase "primary residence" to describe the place where the children live most often, without necessarily making any order that one parent have custody to the exclusion of the other parent.
==Legal Concepts About Care of of Children==


Orders about who will have access can share the stigmatizing effect of orders for sole custody. Some lawyers and judges are moving towards describing the non-custodial parent's "access" as "parenting time," that parent's "time with the children" or as "the children's time with" that parent, and describing the arrangements that are made for custody, guardianship and access as a "parenting plan."
===Custody Under the ''Divorce Act''===


The common goal here is to reduce the preconceptions that:
Custody is about the right to have the child with you and the right to make decisionc about how the child is reade


the parent without custody is a "lesser" parent;
the non-custodial parent has a less important role to play in raising the children; or,
the non-custodial parent's time with the children is a right rather than a privilege.
A. Custody
Custody can be awarded to one person, called "sole custody," or it can be shared between two parents, usually called "joint custody." Custody is a difficult and fuzzy concept to define because in British Columbia it shares a lot of its meaning with guardianship, and because whether custody held jointly or not has nothing to do with how much the child is with each parent.
Custody can be awarded to one person, called "sole custody," or it can be shared between two parents, usually called "joint custody." Custody is a difficult and fuzzy concept to define because in British Columbia it shares a lot of its meaning with guardianship, and because whether custody held jointly or not has nothing to do with how much the child is with each parent.


Retrieved from "https://wiki.clicklaw.bc.ca/index.php?title=Special:MobileDiff/1172"