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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 20:30, 28 September 2022
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*people who are parents because of an assisted reproduction agreement, | *people who are parents because of an assisted reproduction agreement, | ||
*people other than parents who are appointed by the court as guardians, and | *people other than parents who are appointed by the court as guardians, and | ||
*people who are appointed by a guardian as guardians when the appointing guardian dies or becomes | *people who are appointed by a guardian as guardians when the appointing guardian dies or becomes too sick to perform the responsibilities of a guardian. | ||
Guardians have "parental responsibilities" for their children and have "parenting time" with their children. | Guardians have "parental responsibilities" for their children and have "parenting time" with their children. | ||
''Parental responsibilities'' are the responsibilities guardians have | ''Parental responsibilities'' are the responsibilities guardians have for making important decisions on behalf of their children, about things like where the children go to school, how they're treated when they get sick and which sorts of extracurricular activities they'll participate in. Only guardians can have parental responsibilities. Parental responsibilities under the ''Family Law Act'' are a lot like "decision-making responsibility" under the ''Divorce Act''. | ||
''Parenting time'' is the schedule of the time that each guardian has with their children. Only guardians can have parenting time. Parenting time under the ''Family Law Act'' means almost exactly the same thing as "parenting time" under the ''Divorce Act''. | ''Parenting time'' is the schedule of the time that each guardian has with their children. Only guardians can have parenting time. Parenting time under the ''Family Law Act'' means almost exactly the same thing as "parenting time" under the ''Divorce Act''. | ||
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'''Children between the ages of 6 to 8''' will have a better grasp of what's going on. These children are getting much better at expressing their feelings, but, now that they're in a social environment with other kids at school, they're also learning to hide and mask their feelings, to lie when lying is useful, and to say things that they think other people want to hear. It can be difficult to know exactly how these children are dealing with their parents' separation. | '''Children between the ages of 6 to 8''' will have a better grasp of what's going on. These children are getting much better at expressing their feelings, but, now that they're in a social environment with other kids at school, they're also learning to hide and mask their feelings, to lie when lying is useful, and to say things that they think other people want to hear. It can be difficult to know exactly how these children are dealing with their parents' separation. | ||
On the other hand, '''children aged 9 to 12''' are usually angry about their parents' separation and its impact on their lives. They may interpret the separation | On the other hand, '''children aged 9 to 12''' are usually angry about their parents' separation and its impact on their lives. They may interpret the separation of their parents as also a rejection of themselves, usually by the parent who's moved out. | ||
'''Teenagers''' will have a much more adult understanding of their parents' separation and often appreciate why their parents' relationship didn't work out. However, while teenagers are developing important skills like empathy and have a deepening appreciation of the complexities of interpersonal relationships, they often develop a moral compass that's rigid and uncompromising. They are likely to blame their parents for | '''Teenagers''' will have a much more adult understanding of their parents' separation and often appreciate why their parents' relationship didn't work out. However, while teenagers are developing important skills like empathy and have a deepening appreciation of the complexities of interpersonal relationships, they often develop a moral compass that's rigid and uncompromising. They are likely to blame their parents for separating, and the upheaval in their personal lives, especially if it means that they've had to move or change schools. Teenagers can be highly judgmental toward the parent they see as responsible for the separation. | ||
====The bad news about separation==== | ====The bad news about separation==== | ||
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While it's true that separation has an important impact on children of all ages, the good news is that parents can mitigate the likelihood of negative outcomes, like the children falling behind and school and the other things just mentioned. In fact, handling a separation well can help children adjust to the change and even help them develop resiliency. It's important to know that parents' behaviour during their separation can have a huge impact on the children's relationships with each of them, and on the children's expectations for their own future relationships in terms of trust, intimacy and closeness. As a result, it's important to minimize conflict and choose dispute resolution processes — and lawyers! — that promote cooperation and discourage conflict. | While it's true that separation has an important impact on children of all ages, the good news is that parents can mitigate the likelihood of negative outcomes, like the children falling behind and school and the other things just mentioned. In fact, handling a separation well can help children adjust to the change and even help them develop resiliency. It's important to know that parents' behaviour during their separation can have a huge impact on the children's relationships with each of them, and on the children's expectations for their own future relationships in terms of trust, intimacy and closeness. As a result, it's important to minimize conflict and choose dispute resolution processes — and lawyers! — that promote cooperation and discourage conflict. | ||
It's also important for parents to recognize when they need help. It often takes longer than people think to adjust to separation, and it's hard for children to adjust to the separation when their parents haven't adjusted themselves. A prominent lower mainland counsellor describes separation and divorce as a wound that must be treated properly in order to heal, and will eventually infect other areas of our lives if it's allowed to fester. Proper treatment can help parents cope better with their separation, which in turn will help the children cope better with their separation. | It's also important for parents to recognize when they need help. It often takes longer than people think to adjust to separation, and it's hard for children to adjust to the separation when their parents haven't adjusted themselves. A prominent lower mainland counsellor describes separation and divorce as a wound that must be treated properly in order to heal, and will eventually infect other areas of our lives if it's not treated and is allowed to fester. Proper treatment can help parents cope better with their separation, which in turn will help the children cope better with their parents' separation. | ||
A lot of issues about separation and separating well are discussed in the [[Separating_Emotionally | Separating Emotionally]] and [[Behaviour,_Boundaries_and_Privacy_after_Separation | Behaviour, Boundaries and Privacy after Separation]] sections of the [[Separating_and_Getting_Divorced | Separating and Getting Divorced]] chapter. In the meantime, know that mental health professionals are available who specialize in helping people work through the emotional turmoil that follows the end of a long-term relationship. Look for professionals with the designations ''Registered Clinical Counsellor'' (RCC), ''Certified Canadian Counsellor'' (CCC), ''Registered Psychologist'' (RPsych) or ''Registered Social Worker'' (RSW). | A lot of issues about separation and separating well are discussed in the [[Separating_Emotionally | Separating Emotionally]] and [[Behaviour,_Boundaries_and_Privacy_after_Separation | Behaviour, Boundaries and Privacy after Separation]] sections of the [[Separating_and_Getting_Divorced | Separating and Getting Divorced]] chapter. In the meantime, know that mental health professionals are available who specialize in helping people work through the emotional turmoil that follows the end of a long-term relationship. Look for professionals with the designations ''Registered Clinical Counsellor'' (RCC), ''Certified Canadian Counsellor'' (CCC), ''Registered Psychologist'' (RPsych) or ''Registered Social Worker'' (RSW). | ||
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===Guardianship=== | ===Guardianship=== | ||
"Guardians" are people who are responsible for the care of someone else, usually someone under a legal disability (like being under the age of majority or being mentally incompetent) or someone who couldn't otherwise care for themself (because of advanced age, physical illness or mental illness). Guardians can be responsible for managing all of someone's affairs or just some of them. Guardians are appointed under a written agreement, like a power of attorney or a living will, or by a court order, like an order making someone a litigation guardian for a person who is underage | "Guardians" are people who are responsible for the care of someone else, usually someone under a legal disability (like being under the age of majority or being mentally incompetent) or someone who couldn't otherwise care for themself (because of advanced age, physical illness or mental illness). Guardians can be responsible for managing all of someone's affairs or just some of them. Guardians are appointed under a written agreement, like a power of attorney or a living will, or by a court order, like an order making someone a litigation guardian for a person who is underage. | ||
In family law, a guardian is someone who is responsible for making decisions for a child, both big decisions, like deciding where the child will live or how they get treated when they're sick, and smaller decisions, like giving consent for a school field trip or deciding which after-school sports they'll play. Guardians are also responsible for looking after their children, making sure they're fed, clothed and have a place to live, and making sure they go to school for as long as the law requires. | In family law, a guardian is someone who is responsible for making decisions for a child, both big decisions, like deciding where the child will live or how they get treated when they're sick, and smaller decisions, like giving consent for a school field trip or deciding which after-school sports they'll play. Guardians are also responsible for looking after their children, making sure they're fed, clothed and have a place to live, and making sure they go to school for as long as the law requires. | ||
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===Parental responsibilities and decision-making responsibility=== | ===Parental responsibilities and decision-making responsibility=== | ||
Parental responsibilities and decision-making responsibility are all about the job of parenting children. "Parental responsibilities" is the term used by the provincial ''Family Law Act''; "decision-making responsibility" is the term used by the federal ''Divorce Act''. They both mean pretty much the same thing. Remember that the ''Divorce Act'' | Parental responsibilities and decision-making responsibility are all about the job of parenting children. "Parental responsibilities" is the term used by the provincial ''Family Law Act''; "decision-making responsibility" is the term used by the federal ''Divorce Act''. They both mean pretty much the same thing. Remember that the ''Divorce Act'' primarily applies to people who are, or used to be, married to each other, while the ''Family Law Act'' primarily applies to parents, regardless of whether they are married spouses, unmarried spouses, just dating or something else. | ||
Parental responsibilities and decision-making responsibility are both about making decisions on behalf of children. The big difference between the ideas is that parents exercise parental responsibilities during their relationship and after it breaks down, while decision-making responsibility only becomes important when married spouses go to court after they separate. But whether we're talking about parental responsibilities or decision-making responsibility, parents and guardians of a child must always exercise their authority in the best interests of their | Parental responsibilities and decision-making responsibility are both about making decisions on behalf of children. The big difference between the ideas is that parents exercise parental responsibilities during their relationship and after it breaks down, while decision-making responsibility only becomes important when married spouses go to court after they separate. But whether we're talking about parental responsibilities or decision-making responsibility, parents and guardians of a child must always exercise their authority in the best interests of their child. | ||
If the parents can’t agree on how to share parental responsibilities or decision-making responsibility, judges can make orders about how they'll be shared. These orders can be general or very specific. Sometimes the court will make a general order that parents will share parental responsibilities or decision-making responsibility and must consult each other before making a decision about a child. Sometimes the court will make a specific order that only one parent will have parental responsibilities or decision-making responsibility, or make an order that each parent will have the exclusive authority to make certain decisions about the children but not others. An order like this might say that one parent has sole responsibility for making health care decisions, for example, while the other has sole responsibility for making decisions about education, but that they both have responsibility for making decisions about their child's extracurricular activities. | If the parents can’t agree on how to share parental responsibilities or decision-making responsibility, judges can make orders about how they'll be shared. These orders can be general or very specific. Sometimes the court will make a general order that parents will share parental responsibilities or decision-making responsibility and must consult each other before making a decision about a child. Sometimes the court will make a specific order that only one parent will have parental responsibilities or decision-making responsibility, or make an order that each parent will have the exclusive authority to make certain decisions about the children but not others. An order like this might say that one parent has sole responsibility for making health care decisions, for example, while the other has sole responsibility for making decisions about education, but that they both have responsibility for making decisions about their child's extracurricular activities. | ||
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<blockquote><blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote></blockquote> | ||
Parental responsibilities and decision-making responsibility are also about the right to get information about children. Under section 16.4 of the ''Divorce Act'', someone who has decision-making responsibility also has the right to ask for and get information about the child's wellbeing, including about their education and health, from anyone who has it, including the other spouse. Under section 41(j) of the ''Family Law Act'', a guardian may or may not have the right to get information about the child depending on how the guardians | Parental responsibilities and decision-making responsibility are also about the right to get information about children. Under section 16.4 of the ''Divorce Act'', someone who has decision-making responsibility also has the right to ask for and get information about the child's wellbeing, including about their education and health, from anyone who has it, including the other spouse. Under section 41(j) of the ''Family Law Act'', a guardian may or may not have the right to get information about the child depending on how parental responsibilities are shared between the guardians. | ||
===Parenting time=== | ===Parenting time=== | ||
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Like all decisions regarding children, the allocation of parenting time must be based on the child’s best interests. The best-interests factors under the ''Divorce Act'' are listed at section 16; the best-interests factors under the ''Family Law Act'' are listed at sections 37 and 38. | Like all decisions regarding children, the allocation of parenting time must be based on the child’s best interests. The best-interests factors under the ''Divorce Act'' are listed at section 16; the best-interests factors under the ''Family Law Act'' are listed at sections 37 and 38. | ||
Under section 16.4 of the ''Divorce Act'', someone who has parenting time with a child also has the right to ask for and get information about the child's wellbeing, including about their education and health, from anyone who has it, including the other spouse. Under section 16.2, a spouse has the authority to make "day-to-day decisions" about the child during their parenting time. ''Day-to-day decisions'' are about | Under section 16.4 of the ''Divorce Act'', someone who has parenting time with a child also has the right to ask for and get information about the child's wellbeing, including about their education and health, from anyone who has it, including the other spouse. Under section 16.2, a spouse has the authority to make "day-to-day decisions" about the child during their parenting time. ''Day-to-day decisions'' are about things like deciding whether to go to the park or to the movies, deciding what clothes the child should wear and deciding when the child should go to bed, as well as emergency decisions. The ''Family Law Act'' says sort of the same thing in section 42(2): | ||
<blockquote><tt>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.</tt></blockquote> | <blockquote><tt>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.</tt></blockquote> | ||
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*police records, | *police records, | ||
*the records of social workers involved with the children, | *the records of social workers involved with the children, | ||
*records from the Ministry | *records from the Ministry of Children and Family Development, and | ||
*a psychologist's report under section 211 of the ''Family Law Act''. | *a psychologist's report under section 211 of the ''Family Law Act''. | ||
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===Contact=== | ===Contact=== | ||
There's a big difference between asking for guardianship, decision-making and parenting time, and asking for contact. In cases about guardianship, decision-making and parenting time, the courts are concerned with the adequacy of the children's living arrangements and their health and welfare, and the enormous responsibility | There's a big difference between asking for guardianship, decision-making and parenting time, and asking for contact. In cases about guardianship, decision-making and parenting time, the courts are concerned with the adequacy of the children's living arrangements and their health and welfare, and the enormous responsibility the court may be giving to someone who is not a parent. In cases about contact, the parents are usually guardians, with parental responsibilities and parenting time, and no one is challenging their ability to manage their children's upbringing. The children are usually well and the parents are doing just fine. As a result, the court will usually place an even greater emphasis on the parent's discretion and judgment. | ||
Grandparents and other people do not have a presumptive entitlement to contact with children under either the ''Divorce Act'' or the ''Family Law Act'', but they can certainly ask for an order that they have contact. The 1993 Supreme Court case of [http://canlii.ca/t/1djbt Chapman v. Chapman] discussed the general rules governing applications for contact by people other than parents: | Grandparents and other people do not have a presumptive entitlement to contact with children under either the ''Divorce Act'' or the ''Family Law Act'', but they can certainly ask for an order that they have contact. The 1993 Supreme Court case of [http://canlii.ca/t/1djbt Chapman v. Chapman] discussed the general rules governing applications for contact by people other than parents: | ||
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*People other than parents may also have to show that they offer some positive benefit to the child before contact will be allowed, and they must show that the child's time with them will be in the child's best interests. Normally, grandparents and other people are allowed only the amount of contact with a child that the child's parents will agree to. | *People other than parents may also have to show that they offer some positive benefit to the child before contact will be allowed, and they must show that the child's time with them will be in the child's best interests. Normally, grandparents and other people are allowed only the amount of contact with a child that the child's parents will agree to. | ||
Where both parents are still in the picture and have already been arguing about how the child's parenting time will be divided between them, the court will usually require that any contact allowed to grandparents and other family members will be carved out of | Where both parents are still in the picture and have already been arguing about how the child's parenting time will be divided between them, the court will usually require that any contact allowed to grandparents and other family members will be carved out of the child's time with the parent who is their relative. In other words, maternal grandparents will usually have contact during the mother's parenting time with the child, and paternal grandparents will have contact during the father's parenting time with the child. The Provincial Court decision in [http://canlii.ca/t/gjgdl N.H. v. D.H.], a case from 2013, is a good example about how the court thinks about contact. | ||
As with applications for guardianship, decision-making or parenting time, grandparents and other people shouldn't be discouraged by the generally pessimistic tone of this discussion. There are lots of cases in which grandparents have been awarded time with their grandchildren; it ''is'' possible to succeed on an application for contact! | As with applications for guardianship, decision-making or parenting time, grandparents and other people shouldn't be discouraged by the generally pessimistic tone of this discussion. There are lots of cases in which grandparents have been awarded time with their grandchildren; it ''is'' possible to succeed on an application for contact! | ||
