Parenting Orders, Guardianship, and Contact (3:XI): Difference between revisions

{{LSLAP Manual TOC|expanded = family}}

Disputes over parenting time of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Parenting time decisions can always be changed; however, courts rarely make such changes. Thus, the decision about who gets interim parenting time 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 a form of shared parenting time on an interim basis so that neither parent’s position is prejudiced. The best interest of the child is the only consideration in determining parenting time, contact, and parenting arrangements (DA, s 16(1)). The primary consideration in determining the child’s best interest will be given to the child’s physical, emotional, and psychological safety, security, and wellbeing (DA, s 16(2)). For all further factors please see XI(B)(c)(i) Factors in Awarding Parenting Time or s 16(3) of the Divorce Act.

In addition to parenting time, 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.'' [http://canlii.ca/t/23r7t ''Charlton v Charlton'', [1980<nowiki>]</nowiki> BCJ No 22]). There is considerable overlap between the two, but it is useful to note that while having parenting time 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 ''DA'' applies only to married couples. Under the Act, the person making the application for parenting time must have been “habitually resident” in the province for at least one year prior.

Amendments to the DA will result in changes to the terms of guardianship:

*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.

== C. Courts ==

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 ([http://canlii.ca/t/7vf2 ''Criminal Code'', RSC 1985, c C-46], ss 280-281). The ''Criminal Code'' makes it an offence for a non-custodial parent to abduct a child. Where a parenting order is in effect, abduction amounts to contempt of Court.  

Relocation is defined and explained under Division 6 of the ''FLA''. It considers relocation of a child that can reasonably be expected to have a significant impact on the child’s relationship with his/her guardian(s) or other adults with which the child has a significant relationship (s 65). The guardian intending to relocate with the child must provide 60-day written notice to all other guardians and persons having contact with the child (s 66). The notice must include the date of the relocation, and the name of the proposed location. Exemptions to these requirements can be granted by the Court if they are satisfied that the notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child (s 66(2)).