Difference between revisions of "Children and Parenting after Separation"

===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.

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.

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.

''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'' 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