Grandparents and Extended Family Members: Difference between revisions

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Their concerns are usually about supervising the parenting of the children or getting a schedule in place that will let them see the children on a regular basis.
Their concerns are usually about supervising the parenting of the children or getting a schedule in place that will let them see the children on a regular basis.


Two laws might apply to caregivers and extended family members who are 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''.
Two laws might apply to caregivers and extended family members who are seeking guardianship of or contact with children. Where the children's parents are already in court about the children, that will be the federal ''Divorce Act'', if the parents are or were married, or the provincial ''Family Law Act''. If the children's parents 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 people other than parents can apply for orders about children, and it's important to understand which law might be applicable.
Each law has different rules about how and when people other than parents can apply for orders about children, and it's important to understand which law might be applicable.
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===The ''Divorce Act''===
===The ''Divorce Act''===


Under 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.
Under s. 16(1) of the ''Divorce Act'', the court can make an order for ''custody'' or ''access'' 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 a child's caregivers and extended family members can step in; there must be an existing proceeding in which to bring the application. .
Since we're talking about the ''Divorce Act'', a court proceeding must have already started between married spouses or formerly married spouses before a child's caregivers and extended family members can step in; there must be an existing proceeding in which to bring the application.  


===The ''Family Law Act''===
===The ''Family Law Act''===
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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.
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.


If the child's guardians are already in court, a child's caregivers and extended family members can start a court proceeding, and ask that the new proceeding be ''joined'' to the proceeding between the guardians. Once that happens, the caregivers and extended family members can ask to vary any orders that have already been made between the guardians.
If the child's guardians are already in court, a child's caregiver or extended family member can start a court proceeding, and ask that the new proceeding be ''joined'' to the proceeding between the guardians. Once that happens, the caregivers and extended family members can ask to vary any orders that have already been made between the guardians.


If the guardians are not in court, a child's caregivers and extended family members can start a court proceeding against the guardians and ask for orders about the children.
If the guardians are not in court, a child's caregiver and extended family member can start a court proceeding against the guardians and ask for orders about the children.


==Rights and Responsibilities of Caregivers and Extended Family==
==Rights and Responsibilities of Caregivers and Extended Family==


Couples who neither married nor lived together but have had a child together can ask for orders about the care of their child and child support for their child under the provincial ''Family Law Act''.
A child's caregivers and extended family members can ask for orders about the care of a child under the provincial ''Family Law Act''. If the child's parents are married and have an order made under the federal ''Divorce Act'', the child's caregivers and extended family members must make any applications about the child under that act and must get the court's permission first.
 
Where the child winds up living mostly with a caregiver or extended family member, the caregiver or extended family member can ask for an order under the ''Family Law Act'' requiring either or both of the child's parents to pay child support to the person with whom the child lives.
 
A child's caregivers and extended family members do not have the standing to ask for orders for spousal support from a parent under the ''Divorce Act'' or the ''Family Law Act'' as they will not be a spouse of the parent. For the same reason, they cannot ask for orders about the division of family property and family debt against a parent under the ''Family Law Act''.


===The Care of Children===
===The Care of Children===
====The ''Divorce Act''====
Where a child's caregiver or extended family member must apply for orders about the child under the ''Divorce Act'' they will be asking for orders about ''custody'' and ''access''. These applications will usually be applications to change, or ''vary'', an order that has already been made between the child's parents.
To vary an order for custody or access, s. 17(5) of the ''Divorce Act'' requires proof of a change in circumstances:
<blockquote><tt>Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote>
Once a change in circumstances has been proven, the child's caregiver or extended family member must then show why it is in the best interests of the child for the court to make the order he or she is asking for, and the court will usually extend a great deal of respect to the wishes of the child's parents. These issues are discussed in more detail in the ______ page.
====The ''Family Law Act''====


Under s. 40(1) of the ''Family Law Act'', only people who are the guardians of a child have ''parental responsibilities'' and ''parenting time'' in relation to that child. People who are not the guardians of a child may have ''contact'' with the child and do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches and so on.
Under s. 40(1) of the ''Family Law Act'', only people who are the guardians of a child have ''parental responsibilities'' and ''parenting time'' in relation to that child. People who are not the guardians of a child may have ''contact'' with the child and do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches and so on.
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#a parent who "regularly cares" for the child.
#a parent who "regularly cares" for the child.


In other words, if a couple had had a child but never lived together, the parent who does not live with the child is not presumed to be a guardian of the child unless he or she "regularly cares" for the child.
A child's caregivers and extended family members are not presumed to be the guardians of a child. A caregiver or extended family member may become the guardian of a child by:
 
A parent who isn't a guardian can become a guardian if the child's other guardians, who may be just the other parent, agree that the parent should be a guardian. If the parents can't agree on this, then the parent who doesn't live with the child has three choices. He or she:
 
#must settle for having contact with the child and not being able to participate in parenting the child;
#must prove that he or she "regularly cares" for the child, in order to be recognized as a guardian of the child who is entitled to participate in parenting the child; or,
#must apply to be appointed as the guardian of a child under s. 51 of the ''Family Law Act''.


Applications for appointment as guardian are difficult as the person who is making the application must provide a special kind of affidavit that talks about the children who are and have been in the person's care, any civil or criminal court proceedings that might impact on the safety of a child, and any history of involvement with the Ministry for Children and Family Development. The person must also provide recent MCFD and police records checks.
#appying for an order appointing him or her as a guardian of a child under s. 51;
#being appointed by as the standby guardian of a child by a guardian under s. 55; or,
#being appointed as the guardian of a child upon the death of a guardian by the guardian's will, under s. 53.


Since being appointed as a standby guardian or a guardian upon the death of a guardian both usually take some time, a caregiver or extended family member who feels the need to step in sooner rather than later will apply for appointment as the guardian of a child under s. 51.


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:
Applications for appointment as a guardian 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:


#the Applicant's relationship to the child;
#the Applicant's relationship to the child;
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===Child Support===
===Child Support===


Child support is payable by anyone who is the parent of a child, regardless of the brevity of the relationship which produced the child. The ''Family Law Act'' says, at s. 147, that "each parent" has a duty to provide support for his or her child.
====The ''Divorce Act''====
 
Under s. 150(1) of the act, child support is to be paid in the amount determined under the Child Support Guidelines. As a result, all of the provisions of the Guidelines apply to unmarried parents, including:
 
#the tables that are used to calculate the amount of child support payable;
#the exceptions that allow child support to be paid in an amount different than the usual table amount; and,
#the rules about the payment of children's special expenses.
 
Nothing in the ''Family Law Act'' or the Child Support Guidelines allows a parent to escape paying support through some quirk in the circumstances under which the child was conceived or whether the pregnancy was planned or not. The only question which may be left open is whether or not the person being asked to pay child support is the parent of the child for whose benefit support is sought. If that's an issue, a paternity test can always be taken.


Additional information about child support and the Guidelines can be found in the Child Support chapter of this wiki. Additional information about paternity and paternity testing can be found in the ____ page.
Under s. 15.1(1) of the ''Divorce Act'', only married spouses may apply for a child support order under the act. As a result, a caregiver or extended family member who has had to apply to vary a ''Divorce Act'' order for custody must apply under the ''Family Law Act'' for an order requiring the child's parents to pay spousal support. Both applications can be made in the same document and at the same time.


==OLD==
====The ''Family Law Act''====


Your relationship may have been brief, but if you and your boyfriend or girlfriend have had a child together you are both responsible for meeting the child's financial needs and you both have the right to be involved in raising the child. You may not have any other rights and obligations towards each other, but you may have the right to participate in parenting the child and you do have the obligation to pay child support.
The ''Family Law Act'' says, at s. 147(1), that "each parent" has a duty to provide support for his or her child, as long as the child is a ''child'' as defined by s. 146 and hasn't become a spouse or withdrawn from the care of his or her parents under s 147(1). Under s. 149, the court can make an order requiring a parent to pay child support to "a designated person" on the application of "a person acting on behalf of a child":


This page is for unmarried people who have had a child but who never lived together. It talks about the legal issues unmarried parents may have to deal with and those they don't, and discusses the two most common issues couples like this have to deal with, child support and the care of children.
<blockquote><tt>(1) ...on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.</tt></blockquote>
<blockquote><tt>(2) An application may be made by</tt></blockquote>
<blockquote><blockquote><tt>(a) a child's parent or guardian,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the child or a person acting on behalf of the child...</tt></blockquote></blockquote>


==Introduction==
As long as the court has made an order under which the child lives mostly with a child's caregiver or extended family member, he or she can ask for an order for child support against any or all of the child's parents and guardians.


The provincial ''Family Law Act'' applies to couples that are or were in long-term cohabiting relationships and to couples who weren't in long relationships but have had a child together. Almost all of the orders the act talks about aren't available to couples who aren't married and don't qualify as unmarried spouses. As a result, parents in short relationships will not be entitled to claim spousal support and are excluded from the parts of the act that deal with family property and family debt.
According to s. 150(1) of the act, where an order for child support is made, the amount of the support order is to be determined under the Child Support Guidelines. As a result, all of the provisions of the Guidelines apply to parents on the application of a child's caregiver or extended family member, including:
 
The federal ''Divorce Act'' only applies to people who are or were married to each other; it doesn't apply to unmarried couples, including couples who qualify as unmarried spouses.
 
===Relief Available to Unmarried Couples===
 
Couples who neither married nor lived together will have certain rights and obligations toward one another if they have a child. One or both of them will also be entitled to certain government benefits as a result of being parents.
 
====Children====
 
There is no minimum length-of-relationship requirement for any claim involving children. A parent is a parent, regardless of the nature of the relationship which produced the child.
 
A parent may apply for all of the relief available under the ''Family Law Act'' that concerns children, from child support to guardianship to the various restraining orders that are available to protect a child from harm. Issues about children are discussed at greater length further on in this page.
 
====Property====
 
In a short relationship, each party will generally be entitled keep whatever he or she brought into the relationship. In the case of jointly owned assets, assets which both parties own and are registered in the names of both parties, like a house or a car, there is a legal presumption that each party has an equal interest in such assets, whether the parties contributed equally to their purchase or not.
 
====Government Benefits====
 
The most important thing to know about government benefits is that most federal legislation defines a ''spouse'' as someone who has been in a cohabiting relationship for at least one year, as opposed to British Columbia's legislation which generally requires a two-year cohabiting relationship to qualify. As a result, someone in a relationship of at least one year may qualify for any federal benefits that depend on a spousal relationship although they probably won't qualify for provincial benefits. People in a relationship of less than one year will not usually qualify for any benefits at all.
 
Benefits relating to children, like the BC Family Bonus, the Canada Child Tax Benefit, the National Child Benefit Supplement and the Universal Child Care Benefit, are available to anyone who is a parent, regardless of the nature of that person's relationship with the other parent. The website of the Canada Revenue Agency has a lot of information about federal and provincial benefits.
 
===Relief Not Available to Unmarried Couples===
 
A couple who have a child but did not live together, or who lived together for less than two years and did not have a child, cannot ask for orders under the ''Family Law Act'' about spousal support or about the division of property and debt.
 
====Spousal Support====
 
The ''Family Law Act'' defines a "spouse" for the purposes of claims for support as someone who has lived in a marriage-like relationship with someone else for at least two years or for less than two years if the couple has had a child together. As only spouses are eligible for spousal support, people who do not meet these criteria cannot apply for spousal support.
 
====Property====
 
The ''Family Law Act'' defines a "spouse" for the purposes of claims about property and debt as someone who has lived in a marriage-like relationship with someone else for at least two years. Only spouses may ask for orders about the division of property and debt.
 
==Child Support==
 
Child support is payable by anyone who is the parent of a child, regardless of the brevity of the relationship which produced the child. The ''Family Law Act'' says, at s. 147, that each parent has a duty to provide support for his or her child.
 
According to s. 150(1) of the act, child support is to be paid in the amount determined under the Child Support Guidelines. As a result, all of the provisions of the Guidelines apply to unmarried parents, including:


#the tables that are used to calculate the amount of child support payable;
#the tables that are used to calculate the amount of child support payable;
#the exceptions that allow child support to be paid in an amount different than the usual table amount; and,
#the exceptions that allow child support to be paid in an amount different than the usual table amount; and,
#the rules about the payment of children's special expenses.
#the rules about the payment of children's special expenses.
Nothing in the ''Family Law Act'' or the Child Support Guidelines allows a parent to escape paying support through some quirk in the circumstances under which the child was conceived or whether the pregnancy was planned or not. The only question which may be left open is whether or not the person being asked to pay child support is the parent of the child for whose benefit support is sought. If that's an issue, a paternity test can always be taken.
Additional information about child support and the Guidelines can be found in the Child Support chapter of this wiki. Additional information about paternity and paternity testing can be found in the ____ page.
==The Care of Children==
Under s. 40(1) of the ''Family Law Act'', only people who are the guardians of a child have ''parental responsibilities'' and ''parenting time'' in relation to that child. People who are not the guardians of a child may have ''contact'' with the child and do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches and so on.
Under s. 39, the people who are presumed to be the guardians of a child are:
#the child's parents, as long as they lived together;
#a person who is a parent of a child under an assisted reproduction agreement; and,
#a parent who "regularly cares" for the child.
In other words, if a couple had had a child but never lived together, the parent who does not live with the child is not presumed to be a guardian of the child unless he or she "regularly cares" for the child.
A parent who isn't a guardian can become a guardian if the child's other guardians, who may be just the other parent, agree that the parent should be a guardian. If the parents can't agree on this, then the parent who doesn't live with the child has three choices. He or she:
#must settle for having contact with the child and not being able to participate in parenting the child;
#must prove that he or she "regularly cares" for the child, in order to be recognized as a guardian of the child who is entitled to participate in parenting the child; or,
#must apply to be appointed as the guardian of a child under s. 51 of the ''Family Law Act''.
Applications for appointment as guardian are difficult as the person who is making the application must provide a special kind of affidavit that talks about the children who are and have been in the person's care, any civil or criminal court proceedings that might impact on the safety of a child, and any history of involvement with the Ministry for Children and Family Development. The person must also provide recent MCFD and police records checks.


==Further Reading in this Chapter==
==Further Reading in this Chapter==
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* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
FLA
FLA, DA, CSG


===Links===
===Links===


* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
CRA webpage on child benefits
DoJ website with child support calculator




{{JP Boyd on Family Law Navbox|type=chapters}}
{{JP Boyd on Family Law Navbox|type=chapters}}

Revision as of 17:05, 25 March 2013

People other than a child's 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 a neighbour, couldn't also have an interest in a child.

This page talks about the claims a child's caregivers and extended family members can make to guardianship of a child, contact with a child and child support.

Introduction

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 supervising the parenting of the children or getting a schedule in place that will let them see the children on a regular basis.

Two laws might apply to caregivers and extended family members who are seeking guardianship of or contact with children. Where the children's parents are already in court about the children, that will be the federal Divorce Act, if the parents are or were married, or the provincial Family Law Act. If the children's parents 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 people other than parents can apply for orders about children, and it's important to understand which law might be applicable.

The Divorce Act

Under s. 16(1) of the Divorce Act, the court can make an order for custody or access 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 a child's caregivers and extended family members can step in; there must be an existing proceeding in which to bring the application.

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.

If the child's guardians are already in court, a child's caregiver or extended family member can start a court proceeding, and ask that the new proceeding be joined to the proceeding between the guardians. Once that happens, the caregivers and extended family members can ask to vary any orders that have already been made between the guardians.

If the guardians are not in court, a child's caregiver and extended family member can start a court proceeding against the guardians and ask for orders about the children.

Rights and Responsibilities of Caregivers and Extended Family

A child's caregivers and extended family members can ask for orders about the care of a child under the provincial Family Law Act. If the child's parents are married and have an order made under the federal Divorce Act, the child's caregivers and extended family members must make any applications about the child under that act and must get the court's permission first.

Where the child winds up living mostly with a caregiver or extended family member, the caregiver or extended family member can ask for an order under the Family Law Act requiring either or both of the child's parents to pay child support to the person with whom the child lives.

A child's caregivers and extended family members do not have the standing to ask for orders for spousal support from a parent under the Divorce Act or the Family Law Act as they will not be a spouse of the parent. For the same reason, they cannot ask for orders about the division of family property and family debt against a parent under the Family Law Act.

The Care of Children

The Divorce Act

Where a child's caregiver or extended family member must apply for orders about the child under the Divorce Act they will be asking for orders about custody and access. These applications will usually be applications to change, or vary, an order that has already been made between the child's parents.

To vary an order for custody or access, s. 17(5) of the Divorce Act requires proof of a change in circumstances:

Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

Once a change in circumstances has been proven, the child's caregiver or extended family member must then show why it is in the best interests of the child for the court to make the order he or she is asking for, and the court will usually extend a great deal of respect to the wishes of the child's parents. These issues are discussed in more detail in the ______ page.

The Family Law Act

Under s. 40(1) of the Family Law Act, only people who are the guardians of a child have parental responsibilities and parenting time in relation to that child. People who are not the guardians of a child may have contact with the child and do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches and so on.

Under s. 39, the people who are presumed to be the guardians of a child are:

  1. the child's parents, as long as they lived together;
  2. a person who is a parent of a child under an assisted reproduction agreement; and,
  3. a parent who "regularly cares" for the child.

A child's caregivers and extended family members are not presumed to be the guardians of a child. A caregiver or extended family member may become the guardian of a child by:

  1. appying for an order appointing him or her as a guardian of a child under s. 51;
  2. being appointed by as the standby guardian of a child by a guardian under s. 55; or,
  3. being appointed as the guardian of a child upon the death of a guardian by the guardian's will, under s. 53.

Since being appointed as a standby guardian or a guardian upon the death of a guardian both usually take some time, a caregiver or extended family member who feels the need to step in sooner rather than later will apply for appointment as the guardian of a child under s. 51.

Applications for appointment as a guardian 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 (MCFD).

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 who are applying for contact don't need to get a criminal records check or an MCFD records check done.

Child Support

The Divorce Act

Under s. 15.1(1) of the Divorce Act, only married spouses may apply for a child support order under the act. As a result, a caregiver or extended family member who has had to apply to vary a Divorce Act order for custody must apply under the Family Law Act for an order requiring the child's parents to pay spousal support. Both applications can be made in the same document and at the same time.

The Family Law Act

The Family Law Act says, at s. 147(1), that "each parent" has a duty to provide support for his or her child, as long as the child is a child as defined by s. 146 and hasn't become a spouse or withdrawn from the care of his or her parents under s 147(1). Under s. 149, the court can make an order requiring a parent to pay child support to "a designated person" on the application of "a person acting on behalf of a child":

(1) ...on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.

(2) An application may be made by

(a) a child's parent or guardian,

(b) the child or a person acting on behalf of the child...

As long as the court has made an order under which the child lives mostly with a child's caregiver or extended family member, he or she can ask for an order for child support against any or all of the child's parents and guardians.

According to s. 150(1) of the act, where an order for child support is made, the amount of the support order is to be determined under the Child Support Guidelines. As a result, all of the provisions of the Guidelines apply to parents on the application of a child's caregiver or extended family member, including:

  1. the tables that are used to calculate the amount of child support payable;
  2. the exceptions that allow child support to be paid in an amount different than the usual table amount; and,
  3. the rules about the payment of children's special expenses.

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

FLA, DA, CSG

Links

  • bulleted list of linked external websites referred to in page

DoJ website with child support calculator