Difference between revisions of "Children and Parenting after Separation"

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

Parents have ''split custody'' of their children, under s. 8 of the Guidelines, 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'', under s. 9 of the Guidelines, 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.

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.

Guardians have ''parental responsibilities'' for the children in their care, which is 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") or by Master Horn (the "Horn model") or some hybrid of the two. Both models describe the rights and obligations both parents have when they are both guardians.

 

The Joyce and Horn models of sharing parental responsibilities are discussed in more detail in the section [[Guardianship, Parenting Arrangements and Contact]].

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 for the child, including any 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 contact 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.

====Birdnesting====

====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 is a good parent and the children would do well with either of them. A helpful 2004 decision of the Provincial Court, ''[http://canlii.ca/t/1jptk J.R. v. S.H.C.]'', 2004 BCPC 0421 discusses the concept of parallel parenting at length:

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.

The 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 the new needs of the child assessments:

<blockquote>"The purpose of a Court ordered s. 15 Assessment and 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 and 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.

A views of the child report, sometimes called a "hear the child report," is exactly what it sounds like. It's a report that describes the child's preferences about his or her parenting arrangements and living circumstances. These reports might address a child's preferences about his or her parenting schedule, the home he or she would like to live in, and whether the child would like to move out of town with a parent. It might address the child's experiences of the conflict between his or her parents or guardians, or perhaps the child's experience with a parent's new partner.

 

There are two types of views of the child report, one type prepared by experts, like psychologists and psychiatrists, and another type prepared by lay persons, people who are not experts, like lawyers and family justice counsellors. These reports are ordered under ss. 37 and 202 of the ''Family Law Act''. Section 37(2)(b) is the part of the best interests of the child test that says that children's views should be heard; s. 202 allows the court to decide how a child's evidence will be received.

 

Although views of the child reports can usually be finished much more quickly and more cheaply than needs of the child assessments, they are no substitute for a proper needs of the child assessment. Parents who want a views of the child report must understand that these reports do not provide the full reporting, testing and analysis offered by a needs of the child assessment, particularly when the person preparing the views of the child report is not a psychologist or psychiatrist.

 

 

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

 

 

Expert views of the child reports usually wind up looking like condensed needs of the child assessments that focus on the child's reports to the assessor. They may include an opinion about things like whether the child's reported preferences represent the child's true preferences, whether the child was coached to report the preferences reported, and perhaps whether the child is being alienated from one parent by the other parent.

 

The assessor will usually meet with the child at least once, in fact probably more than once, and may administer a number of psychological tests intended to give the assessor more insight into the child's preferences and state of mind. The assessor may or may not collect additional information from the parents or the other people involved in the child's life.

Because these reports do not involve the same extensive interviews and testing involved in needs of the child assessments, they tend to be cheaper to prepare and they should be prepared faster than needs of the child assessments.

These sorts or reports are generally only appropriate when:

#a full needs of the child assessment isn't necessary,

#the child is more than four or five years old, and

#the judge wants to hear from the child but does not want to interview the child him- or herself.

====Non-evaluative views of the child reports====

Views of the child reports prepared by lay persons like lawyers and family justice counsellors don't provide the same level of analysis or authority offered by expert views of the child reports. These people are not qualified to offer an opinion about the child's state of mind or the truthfulness of the child's statements. All they can really do is say what the child told them, which is why these reports are ''non-evaluative''. They don't evaluate; they just report.

The reporter will generally meet with the child once and speak with each parent once. The reporter will generally know very little about the background of the case before meeting the child except for what the child's parents or lawyers may have mentioned.

Because these reports involve no testing and no expert analysis they can usually be prepared very quickly and very cheaply. (I can, for example, usually get reports like these done within a week or two of being hired, although you shouldn't assume this is typical of all lay reporters.) These sorts of reports are generally only appropriate when:

#the parents understand that the views of the child are only one part of the whole picture,

#the parents understand that the report is not an expert report,

#a full needs of the child assessment isn't necessary,

#the child is more than six or seven years old, and

#the judge wants to hear from the child but does not want to interview the child him- or herself.

These reports will not be appropriate where the child is not capable of expressing his or her preferences or where there are allegations of parental alienation.

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.

#getting contact with the children,

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. A person who is applying to become the guardian of a child, an ''applicant'', must fill out a special affidavit required by the [http://canlii.ca/t/85pb Provincial Court (Family) Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules]

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 or guardianship application, although the chances of success depend wholly on the circumstances of each case.

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 or cotnact with their grandchildren. The 1993 British Columbia case of ''[http://canlii.ca/t/1djbt Chapman v. Chapman]'', 1993 CanLII 2598 (BC SC) sets out the general rules governing applications for access or contact by non-parents:

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]]''.  

* [http://clicklaw.bc.ca/helpmap/service/1113 Legal Services Society's Family Law Website: Children's right to time with grandparents]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}