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Difference between revisions of "Parenting Orders, Guardianship, and Contact (3:XI)"
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Parenting Orders, Guardianship, and Contact (3:XI) (view source)
Revision as of 17:54, 10 August 2022
, 17:54, 10 August 2022→E. Access
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# The retraining or educational opportunities for the moving parent. | # The retraining or educational opportunities for the moving parent. | ||
== E. | == E. Contact == | ||
"Access" is the term used under the ''DA''. As of March 1, 2021, the term “access” will be removed from the DA, and the term “contact order” will be used to describe arrangements for non-guardians. Under the ''FLA'', the terms are "parenting time" for guardians, or "contact" for non-guardians. | "Access" is the term used under the ''DA''. As of March 1, 2021, the term “access” will be removed from the DA, and the term “contact order” will be used to describe arrangements for non-guardians. Under the ''FLA'', the terms are "parenting time" for guardians, or "contact" for non-guardians. | ||
To gain contact with a child, a non-guardian can either arrange it unofficially with the guardian or seek a contact order. | |||
Contact Orders are used to provide arrangements for non-guardians under the DA. Anyone who wants a contact order under the Divorce Act must seek leave to apply (DA, s. 15.5(3)). | |||
Under the FLA, the terms are "parenting time" for guardians, or "contact" for non-guardians. Some parents are not considered guardians and the law recognizes the child’s right to have a relationship with both parents whenever possible. | |||
Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the ''FLA'' came into force (March 18, 2013), do not need special transition sections. Section 4 of the ''Interpretation Act'' provides a default rule that the Act will be used upon it becoming effective, so cases started under the ''FRA'' will be determined under the ''FLA''. | Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the ''FLA'' came into force (March 18, 2013), do not need special transition sections. Section 4 of the ''Interpretation Act'' provides a default rule that the Act will be used upon it becoming effective, so cases started under the ''FRA'' will be determined under the ''FLA''. | ||
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Unless a parent poses a risk to the safety or well-being of the child, they will usually be allowed access or visiting rights. Courts can make an order for access and may view a custodial parent who denies access as acting against the best interests of the child. | Unless a parent poses a risk to the safety or well-being of the child, they will usually be allowed access or visiting rights. Courts can make an order for access and may view a custodial parent who denies access as acting against the best interests of the child. | ||
:'''NOTE:''' It is important to note that | :'''NOTE:''' It is important to note that contact/parenting time is a distinct and separate issue from child support. '''Denial of contact/parenting time is not grounds to withhold support; nor is a failure to pay support grounds for withholding contact/parenting time.''' | ||
=== 1. Factors Considered in Making an | === 1. Factors Considered in Making an Contact Order === | ||
The overriding principle remains the '''best interests of the child'''. The courts will not be bound by the wishes of the child, although the child’s views can be a powerful factor. When the '''FLA''' came into force, it introduced an overarching consideration “'''to ensure the greatest possible protection of the child’s physical, psychological, and emotional safety.'''” It can be argued that this consideration is functionally in place already, however. The courts will look into several factors in making access orders. These include: | The overriding principle remains the '''best interests of the child'''. The courts will not be bound by the wishes of the child, although the child’s views can be a powerful factor. When the '''FLA''' came into force, it introduced an overarching consideration “'''to ensure the greatest possible protection of the child’s physical, psychological, and emotional safety.'''” It can be argued that this consideration is functionally in place already, however. The courts will look into several factors in making access orders. These include: | ||
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*Health of the non-custodial parent: if health problems limit the non-custodial parent’s ability to care for the child, access may be limited; | *Health of the non-custodial parent: if health problems limit the non-custodial parent’s ability to care for the child, access may be limited; | ||
=== 2. Types of | === 2. Types of Contact Orders === | ||
==== a) Interim Orders ==== | ==== a) Interim Orders ==== | ||
After making an interim parenting order, a court will often grant | After making an interim parenting order, a court will often grant contact on an interim basis. Usually, such an order will favour the status quo, so as to minimize disruption for the child. | ||
==== b) | ==== b) Final Orders ==== | ||
The final decision by the court regarding contact, although often not needed as parties can save time and money by participating in mediation instead. | |||
==== c) | ==== c) Conditions set by the court on contact orders (Interim and Final) ==== | ||
*'''i. Specified versus Unspecified Access''' | |||
Specified orders set out the times and places at which the non-custodial parent must have access to the child. Specified orders are generally preferred. Unspecified access is less common and is ordered when the parents are willing to accommodate one another. | |||
*'''ii. Conditional''' | |||
Courts may impose requirements, such as not smoking or using drugs or alcohol in the presence of the child. If the parent fails to meet the condition, access may be denied. | |||
*'''iii. Supervised''' | |||
Courts may order visits to be supervised by a designated third party if there are concerns about abuse, abduction, mental and physical handicaps or attempts to alienate the child from the custodial parent. It is up to the custodial parent to demonstrate that access should be supervised. | Courts may order visits to be supervised by a designated third party if there are concerns about abuse, abduction, mental and physical handicaps or attempts to alienate the child from the custodial parent. It is up to the custodial parent to demonstrate that access should be supervised. | ||
:'''NOTE:''' There are no filing fees nor does a person need legal representation in Provincial Court, making it a more accessible option for many clients. | :'''NOTE:''' There are no filing fees nor does a person need legal representation in Provincial Court, making it a more accessible option for many clients. | ||
=== 3. | === 3. On Orders in more than one Jurisdiction Respecting Guardianship, Parenting Arrangements, or Contact === | ||
Under the ''FLA'', the Court may exercise its jurisdiction to make parenting and access orders if one of the following conditions is met: | Under the ''FLA'', the Court may exercise its jurisdiction to make parenting and access orders if one of the following conditions is met: | ||
