Parenting Orders, Guardianship, and Contact (3:XI)

A. General

Disputes over custody of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Custody decisions can always be changed, however, courts rarely make such changes. Thus, the decision about who gets interim custody is particularly important. Children usually stay with the parent who has provided primary care in the past and who can spend the most time with them. Sometimes, courts will order joint custody on an interim basis so that neither parent’s position is prejudiced.

The best interests of the child is the only consideration in determining custody and access and parenting arrangements.

In addition to custody, courts can also make decisions regarding guardianship of minor children. Guardianship gives a parent or other person “a full and active” role in determining the course of a child’s life and upbringing (see e.g. Charlton v Charlton, [1980] BCJ No 22). There is considerable overlap between the two, but it is useful to note that while having custody usually includes having guardianship, the reverse is often not true. This distinction is impacted somewhat by the FLA as the term “Guardianship” subsumes all the rights and responsibilities of a parent and there is no longer reference to “Custody”.

The case law on custody and guardianship has developed to the point where there is a presumption in favour of joint custody (defined on pg. 42) and joint guardianship (although there is no legislative presumption). A parent seeking sole custody will generally have to show that there is a serious defect in the other person’s parenting skills, that the other person is geographically distant, or that the parents are utterly unable to communicate without fighting before the Court will consider granting such an application, and in the last case, the Court may explore other options such as Parenting Coordination or parcelling out decision making and responsibilities to address the communication issue instead of granting sole custody to one parent.

B. Legislation

1. Divorce Act

The DA only speaks of access and custody. Under s 16, the Supreme Court may make an order for custody. This order will supersede any existing FRA orders, which cover custody, access, and guardianship, and can be registered for enforcement with any other Superior Provincial Court in Canada. The Supreme Court can also grant interim custody before a divorce action is heard.

The DA applies only to married couples. Under the Act, the person making the application for custody must have been “habitually resident” in the province for at least one year prior.

2. Family Law Act

Among a plethora of changes to the general family law in BC, the Act makes the following changes to the law surrounding guardianship:

• Replace the terms “custody” and “access” with “guardianship”, “parenting time”, and “contact”.
• Define “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements.
• Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.
• Under the FLA, the terms custody and access are no longer used – only guardianship will be considered.
• Additionally, the “best interests of the child” is no longer the paramount consideration under the FLA; it is the only consideration.

C. Courts

1. Supreme Court

The Supreme Court has jurisdiction to deal with all matters relating to custody, guardianship and access to children, pursuant to the DA, the FLA, and the CFCSA. Although, the Court almost never deals with the CFCSA unless there is the matter of adoption to be considered. This includes orders restraining contact or entry to the matrimonial home.

The Supreme Court has parens patriae jurisdiction over all children in the province. In operation, this can allow the Court to transcend the statutory letter of the law in the best interests of the child.

A written agreement about custody or guardianship may be given the force of a court order under section 44 of the FLA. Under the FRA, the relevant sections were 121 and 122. Any orders made under the FRA are still in force. An order made under the DA can be registered for enforcement in any other province’s Supreme Court registry.

2. Provincial Court

The Provincial Court has jurisdiction to deal with all matters relating to custody, guardianship and access to children, and the Child, Family and Community Service Act. This includes restraining orders but does not include orders restraining entry to the matrimonial home. A written agreement about custody or guardianship may be given the force of a court order, or s 44 of the FLA, if it is filed in court.

D. Custody

Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the Family Law Act is in force, 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 Family Relations Act will be determined under the Family Law Act.

In the absence of a court order or a written agreement, custody of a child remains with the person with whom the child usually resides. One must bear in mind that the Act does not touch on day-to-day life until it is invoked, usually by filing a lawsuit or by making an application.

1. Factors in Awarding Custody

The factors that the Court must consider in determining the “best interests of the child” are set out in, s 37 of the FLA, and at s 16 of the DA. It is important to note that these factors should not be viewed like a checklist or a firm “rubric” with solid weights for each point. Rather, the discretionary, contextual, and complex nature of custody cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interests argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.

Some of these factors include the child’s health and emotional well-being, his or her education and training and the love, affection and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. (The FLA presumptively considers the views of the child.) For a custody order relating to a teenager to be practical, it must reasonably conform to the wishes of the child (O’Connell v McIndoe (1998), 42 R.F.L. (4th) 77 (BCCA), Alexander v Alexander (1988), 15 R.F.L. (3d) 363 (BCCA)).

Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality and moral fitness of each parent. However, there is no presumption against the separation of siblings (P (AH) v P (AC), 1999 BCCA 203). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also considers psychological, spiritual, and emotional factors (King v Low,(1985), 44 R.F.L. (2d) 113 (SCC)). The Court will take into account the personality, character, stability, and conduct of a parent, if appropriate (Bell v Kirk (1986), 3 R.F.L. (3d) 377 (BCCA)).

Agreements between parties regarding custody do not oust the Court’s jurisdiction. An agreement is important, but only one of several factors to be taken into consideration when determining the best interests of the child. The degree of bonding between child and parent is also taken into consideration. The biological link does not outweigh other considerations, but when all other factors are equal, the custody of the child is best served with the biological parents (L (A) v K (D),2000 BCCA 455; H (CR) v H. (BA), 2005 BCCA 277).

Race and aboriginal heritage are relevant considerations, but neither is determinative of custody alone. The importance of race differs in adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to his or her race or culture (Van de Perre v Edwards, 2001 SCC 60). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests (H (D) v M (H), [1997] BCJ No 2144 (QL) (SC)).

Clients may wish to vary a custody order. The threshold for a variation of a custody or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents (Gordon v Goertz, 2001 BCSC 649).

Section 211 of the FLA allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over custody is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an FLA Section 211 report (Gupta v Gupta, 2001 BCSC 649).

2. Types of Custody Orders

a) Interim Orders

An interim order is a temporary order made once the proceedings have commenced but before the final order is pronounced. Courts will usually make interim custody orders while an action in divorce is underway, with an eye to the child’s immediate best interests. Courts tend to favour stability, so an interim order is likely to favour the party with custody at the time of the marriage breakdown. This presumption toward stability can make an interim order may be of substantial weight in determining a final custody order.

b) Sole Custody

Sole custody, in which one parent provides the primary residence and is mostly responsible for day-to-day care, can be granted in cases where the parents request such an arrangement, where they live far apart, or where relations between the parties are so poor as to preclude cooperation.

Note: The concept of “full custody” does not exist, and likely the client is referring to sole custody.

Note: “Custody” is a term under the DA and so only applies to claims using the DA and in Supreme Court

c) Joint Custody

In joint custody, both parents have custody of the child. While the child may reside primarily with one parent, the parents cooperate in raising the child, acting as both joint custodians and joint guardians of the child. In British Columbia, there is a presumption toward joint custody.

d) Shared Custody

Shared Custody is a term used by the Federal Child Support Guidelines, and not by either the DA and the FLA. Shared custody is a form of joint custody in which the child spends an almost equal time with each parent, often switching homes on a frequent basis, every few days or once a week. Usually, this requires that the parents live near one another and have good communications skills and that the child is able to adapt to living in two homes. This will affect child support.

e) Split Custody

Split Custody is a term used by the Federal Child Support Guidelines, and not by either the DA and the FLA. On rare occasions, courts will order siblings to live with separate parents. This is usually a drastic solution, ordered only after a FLA section 211 report is submitted to the Court. This will affect child support.

3. Other Custody Issues

a) Consent Orders

Where there is agreement on the terms of support or custody provisions, but no written agreement, a consent order may be made by the Court (FLA, s 219) if the written consent of the party against whom the order is to be enforced has been obtained. The order can extend only to the terms consented to.

b) Enforcement of Custody Orders

Where a custody order is in force, the Court may make an order prohibiting interference with a child. The Court may further order sureties and/or documents from the person against whom the order is made, and require that person to report to the Court for a period of time (FLA, s 183).

Under the FLA, police officer enforcement clauses can only be granted when there has been a breach of an order (s 231).

A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the FLA, s 188 that carries a possibility of criminal proceedings (Criminal Code, RSC 1985, c C-46, ss 280-281). The Criminal Code

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