Children and Parenting after Separation

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.

DRAFT

Introduction

There are two laws that deal with issues about the care of children when parents separate, the federal Divorce Act and the provincial Family Law Act. Both laws allow parents and other people to apply for orders about where the children will live and how much time each person will have with the children if they can't make an agreement about these issues themselves. Whenever the court is asked to make a decision about issues like these, the court's primary concern is the children and the sort of arrangements that will be in their best interests.

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, 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 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

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.

Custody and Access

The Divorce Act talks about the care of children in terms of custody and access. Custody is about the right to have the child with you and the right to make decisions about how the child is cared for and raised. Access is about the child's schedule of time with his or her parents, however a parent who has access but doesn't have custody is still entitled to have information about the health, education and wellbeing of the child.

Guardianship and Parental Responsibilities

The Family Law Act talks about people who are guardians and are responsible for making decisions about how the child is cared for and raised, called parental responsibilities, in the best interests of the child.

Guardians are usually, but not always, the parents of a child, including people who are parents because of an assisted reproduction agreement. 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.

Parenting Time and Contact

Under the Family Law Act, a guardian's time with a child is parenting time. During a guardian's parenting time, the guardian is responsible for the care of the child and is entitled to make basic day-to-day decisions for the child. The schedule of a child's time with someone who isn't a guardian is contact.

The Best Interests of the Children

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.

Section 16 of the Divorce Act is about custody and access and says this:

(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.

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:

(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.

(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:

(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(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;

(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;

(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;

(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;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(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.

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:

• Who looked after the child most of the time during the marriage?
• 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."

"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."

Custody and Guardianship After Separation

The old Family Relations Act made certain assumptions 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.

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:

1. people who are parents under an assisted reproduction agreement; and,
2. a parent who do have never lived with the other parent but "regularly cares" for his or her child.

The Divorce Act does not make any presumptions about who has custody of the children after separation.

Legal Concepts About Care of Children

Custody and Access Under the Divorce Act

Custody is about the right to have the child with you and the right to make decisions about how the child is raised. Custody can be awarded to one person, called sole custody, or it can be shared between two parents, usually called joint custody.

A parent who has sole custody has the household in which the child lives for the majority of the time.

When parents have joint custody, both parents have the right to the day-to-day care of the child, although the child may spend more time at the home of one parent than the other, sometimes a lot more time. Parents can have joint custody even when one of them only sees the child on the weekends and even when the parents live in different provinces. There is no connection between having joint custody and the amount of time each parent has with the child.

Access is the schedule of the child's time between his or her parents.

It is very important to understand that a parent's access rights to a child are entirely separate from that parent's obligation to pay child support. Child support is not a fee paid or charged to see one's child. It is never appropriate to withhold access because a parent missed a child support payment, nor is it ever appropriate to stop paying child support because access has been withheld. The courts do not look kindly on parents who have engaged in this sort of conduct.

Custody Under the Child Support Guidelines

The Child Support Guidelines is a regulation to the Divorce Act that has been adopted by almost every province, including British Columbia. The Guidelines talk about how child support should be calculated, but along the way they also talk about how the children's time is shared among their parents since that can have an impact on the calculation of child support.

Parents have split custody of their children when one or more of the children live with each parent most of the time. This sort of arrangement is pretty rare because it means that siblings will be separated from each other for significant periods of time. Split custody will only be ordered when there is good evidence that it is in the best interests of the children to live apart from each other, which might be the case when the children don't get along with each other and are constantly fighting, or where it can be proved that one or more but not all of the children will be better off with the other parent.

Parents have shared custody when the children spend an equal or almost equal amount of time in each of the parents' homes. This sort of arrangement is becoming increasingly common.

Guardianship Under the Family Law Act

The Family Law Act doesn't talk about custody. Instead it talks about the rights and duties of people who are guardians. Most of the time, a guardian is a child's parent. However, other people can become guardians by being appointed by the court or by being named as guardian in a guardian's will.

Parental Responsibilities

Guardian's have parental responsibilities with respect to the children in their care, the duty to make decisions about the children in the best interests of the children. The terms of how parental responsibilities will be handled can be vague or they can be very specific. Specific terms usually define the distribution of parental responsibilities using a set of clauses drafted by Mr. Justice Joyce (the "Joyce model"), by Mr. Justice Garner (the "Charlton model") or by Master Horn (the "Horn model") or some hybrid of the three. All three models describe the rights and obligations both parents have when they are all guardians.

The Joyce model is fairly detailed and require the guardians to consult with one another on all important decisions affecting the child, to make their best efforts to work together to reach a solution which is in the best interests of the child, and so forth. When guardians can't agree on a decision, the Joyce model might say that one guardian will have the last word, or it might say that the parents will try to mediate the issue, consult a child psychologist about the issue or ask a judge for directions on the issue.

The Charlton model is about each guardian's right to participate in making decisions about all aspects of a child's life and requires guardians to cooperate in making these decisions, with neither of them having the ultimate say.

The Horn model is more about the guardians' rights to access information about the child, usually about the child's schooling, health and extracurricular activities. The Horn model implies that the guardian with whom the child mostly lives will be entitled to make decisions about the child as he or she sees fit, with the other guardian having a right to information about the child. Under s. 49 of the Family Law Act, however, that guardian will always have the right to ask the court for directions on the subject of the other guardian's decision.

Parenting Time

The schedule of a child's time between guardians is called parenting time, and the allocation of parenting time between the child's guardians is about the child's living arrangements. During a guardian's parenting time, the guardian is responsible for the care of the child and may make decisions about day-to-day issues concerning the child.

It is very important to understand that a guardian's parenting time with a child are 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 access 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.

Contact Under the Family Law Act

Under the Family Law Act, someone who is not a parent, has contact with a child. Someone with contact does not have any parental responsibilities in respect of the child, including responsibility for day-to-day decision-making concerning the child.

It is very important to understand that a person's contact 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 access because a child support payment was missed, nor is it ever appropriate to stop paying child support because contact has been withheld. The courts do not look kindly on people who have engaged in this sort of conduct.

Other Legal Concepts

Birdnesting

Birdnesting refers to a parenting schedule where the children live full-time in the family home and their parents move in and out. In a usual situation of shared custody, the children go to live with one parent for a period of time, then go to live with the other parent for a roughly equal period of time. When parents birdnest, the children remain in the same place and it's the parents who do the moving, normally while maintaining separate homes outside the family home.

The theory underlying this concept is that it is disruptive for children to switch homes every week and that it can be too 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. Of course, the cost saved by avoiding duplication of the children's clothes and books is offset by the need to maintain three homes: the family home, and a home for each of the parents.

Birdnesting is not a term drawn from either the Family Law Act or the Divorce Act.

Parallel Parenting

Parallel parenting is a way of distributing parental responsibilities between guardians that is best suited for high-conflict situations where each of the guardians are good parents and the children would do well with either of them. A helpful 2004 decision of the Provincial Court, J.R. v. S.H.C., discusses the concept of parallel parenting at length:

• A guardian assumes complete responsibility for the children when they are with him or her.
• A guardian has no say over the actions of the other guardian when the children are in that guardian's care.
• There is no expectation of flexibility between the guardians.
• A guardian does not plan activities for the children when they are with the other guardian.
• Contact between the guardians is minimized and children are not asked to pass messages to the other guardian. When the guardians must communicate, they do so in writing in a book the children take with them from one home to the other.

To further minimize disputes, guardians who are parallel parenting are assigned specific parental responsibilities over which they will have sole authority. For example, one guardian might be responsible for educational and religious issues while the other is responsible for sports and music lessons.

Parallel parenting is not a term you will find in the Family Law Act or in the Divorce Act. It too is a creation of the courts

Grandparents and Other Important People

People other than a child's biological parents can also have a legal interest in a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles and so forth — although there's no reason at all why someone else, like an unrelated long-term caregiver or neighbour, couldn't also have an interest in a child. Most often, however, it's grandparents who feel the need to seek a legal role in their grandchildren's lives. For that reason, this discussion is primarily directed to grandparents, although it applies equally to other people who are not the parent of a child.

Grandparents and other people who are not parents normally become involved in court proceedings dealing with children, as parties in their own right, in only a few situations:

1. where one or both of the guardians of the children are dead;
2. where one or both of the guardians have abandoned the children or the care of the children;
3. where there are serious concerns about the fitness of the guardians to care for the children; or,
4. where they are being denied time or involvement with the children.

Their concerns are usually about:

1. getting contact with the children;
2. supervising the parenting of the children when they are with a guardian; or,
3. being appointed as a guardian of the children.

No matter how valid or legitimate a grandparent's or other non-parent's concerns might be, the court will place a great deal of weight on the wishes of the parents. In a 2003 case of the British Columbia Supreme Court, M.(D.W.) v. M.(J.S.), the court said that while it must give "paramount consideration" to the best interests of the child, "significant deference must be accorded to the custodial parent and that parent's ability to determine the child's best interests."

Legislation

Two laws might apply to non-parents seeking guardianship of or contact with children. Where the children's 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 guardians are not involved in a court proceeding between each other, it will be the Family Law Act.

Each law has different rules about how and when non-parents can apply in court, and it's important to understand which law might be applicable.

The Divorce Act

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 act only applies to disputes between married spouses.

The Family Law Act

The Family Law Act talks about guardians who have parental responsibilities and have parenting time with children, and about people who are not guardians who have contact with a child.

Any person can apply to be appointed as the guardian of a child under s. 51 of the act, however these applications can be difficult and time-consuming and the court must be satisfied that the appointment is in the best interests of the child. People applying to become the guardian of a child, an Applicant, must fill out a special affidavit required by the Provincial Court Family Rules and the Supreme Court Family Rules that talks about:

1. the Applicant's relationship to the child;
2. the other children presently in the care of the Applicant;
3. any history of family violence that might affect the child; and,
4. any previous civil or criminal court proceedings related to the best interests of the child.

Applicants must also get a new criminal records check and a records check from the Ministry of Children and Family Development.

Any person can apply for contact with a child under s. 59 of the act. The court must be satisfied that the contact asked for is in the best interests of the child. People applying for contact don't need to get a criminal records check or an MCFD records check done.

Custody and Guardianship

There is a strong presumption in favour of the natural or adoptive parents of the children. The court will generally be inclined to allow the children to remain with their parent or parents unless a strong case can be shown that the parents are neglectful and that the children are suffering in their care. To quote from a 1992 case of the British Columbia Supreme Court, J.R. v. D.W.:

"Parental claims will not lightly be set aside except in clear cases where the welfare of the child cannot otherwise be achieved."

The Supreme Court of Canada emphasized the children's best interests a bit more strongly in Racine v. Woods, a case from 1983:

"The law no longer treats children as the property of those who gave them birth but focuses on what is in their best interests."

Nevertheless, grandparents and other non-parents 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.

Factors that the courts have taken into consideration in awarding custody to a non-parent have included:

1. ill-treatment, mistreatment and neglect of the children;
2. chronic drug or alcohol use, a partying type of lifestyle;
3. instability of the guardians' lifestyle and living situation;
4. abandonment of the children by the guardians, or an existing status quo in which the non-parent is primarily responsible for the care of the children; and,
5. poor parenting skills on the part of the guardian.

Grandparents and other non-parents shouldn't be too discouraged by the generally pessimistic tone of this discussion. There are quite a few cases in which grandparents have been awarded custody of their grandchildren; it is possible to succeed on a custody application, although the chances of success depend wholly on the circumstances of each case.

Access and Contact

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 health and welfare of the children. In court proceedings for access or contact, the parent usually has custody, and the court is being asked to challenge the parent or guardian's right to control his or her child's upbringing. As a result, the court will place an even greater emphasis on the discretion and judgment of the parent or guardian.

Grandparents and other non-parents do not have a presumptive right of access to or contact with children under either the Divorce Act or the Family Law Act, but they can ask the court to make an order giving them access to their grandchildren. The 1993 Supreme Court of British Columbia case of Chapman v. Chapman sets out the general rules governing applications for access or contact by non-parents:

• The burden is on the non-parent to show that the proposed access or contact is in the child's best interests.
• The child's guardians have a significant role and the court should be slow to interfere with the guardians' discretion, and should only do so when satisfied that the access or contact is in the child's best interests.
• It is not in the child's best interests to be placed in circumstances of conflict between guardians and non-parents, and access or contact should not be given where it would only escalate the conflict between the parties.
• 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 occur during the time that their child has the grandchild. In other words, maternal grandparents will usually have access, if the court makes the order at all, during the mother's time with the child. Where only one guardian is in the picture, the court will usually determine what access the grandparents ought to have independently of the interests of the guardian.

As with applications for custody or guardianship, grandparents and other non-parents should not be discouraged by the generally pessimistic tone of this discussion. There are numerous cases in which grandparents have been awarded time with their grandchildren; it is possible to succeed on an application for access or contact.

Financial Support

When a non-parent obtains custody of a child or an order that the child live mostly with him or her, that person can apply for child support to be paid by the guardians of the child. The same rules will apply to a non-parent's application for child support as apply to a guardian's application, except that grandparents and other non-parents can only apply for child support under the Family Law Act, they cannot apply under the Divorce Act.

Grandparents are also entitled to ask for financial support from the provincial government to defray the cost of caring for any grandchildren in their care. The province of British Columbia pays grandparents looking after their grandchildren at the same rate as foster parents. It's not a princely sum, but it's better than a kick in the teeth.

Further Reading in this Chapter

• bulleted list of other pages in this chapter, linked

Page Resources and Links

Legislation

• bulleted list of linked legislation referred to in page

Links

• bulleted list of linked external websites referred to in page
• list of related public resources