Children and Parenting after Separation

When a couple involved in a family law dispute has children, they must make decisions about four important issues: where the children will live, how parenting decisions will be made, how often each parent will see the children and how the children will be provided for. This chapter will review the first three of these issues in detail. The fourth issue is covered in the Child Support chapter.

This page provides an introduction to the law on the care of children after separation, and looks at traditional and developing concepts in this area of the law. It also discusses the rights and interests that grandparents and other non-parents might have in respect of someone else's children. Other legal issues relating to children, such as family violence, naming and adoption, are discussed in the ______ chapter.

DRAFT

Introduction

There are two laws that deal with issues about the care of children when parents separate, the federal Divorce Act and the provincial Family Law Act. Both laws allow parents and other people to apply for orders about where the children will live and how much time each person will have with the children if they can't make an agreement about these issues themselves. Whenever the court is asked to make a decision about issues like these, the court's primary concern is the children and the sort of arrangements that will be in their best interests.

Most of the pages in this chapter talk about how the court makes these decisions and the laws that apply to different parents in different situations. The next page, Parenting after Separation, talks about some very important issues that don't involve the courts and the legislation but are equally important: protecting children from the conflict between their parents, examples of different parenting plans, and some of the parenting resources that are available to separating and separated parents.

When parents separate, there is a lot more at stake than just where the children are going to be living tomorrow. Parents have an obligation to think in the long-term, and take a perspective that sees years down the road. How is their conflict going to affect their children? How can both parents maintain a meaningful role in their children's lives? How will the children adapt to the separation? When the children are older and look back on their childhood, what will they think of the separation? And, perhaps most importantly, how can the children be best helped to grow and mature into adults with families of their own?

There's a lot more to dealing with the care of children after separation than what you'll find in the Divorce Act and the Family Law Act. The romantic relationship between the parents may be over, but they'll always be parents no matter the nature of their relationship with each other. Parents owe a duty to their children to overcome their differences and always put their children first, no matter how hard it is to cope with the emotional and legal issues that arise from their separation.

The Divorce Act and the Family Law Act

For married spouses, the law regarding about children after separation is governed by the federal Divorce Act as well as the provincial Family Law Act. For unmarried spouses and other unmarried couples, the only governing law is the Family Law Act. Although married spouses can ask for orders under both the Divorce Act and the Family Law Act, because the two laws approach the care of children with different attitudes and different language, which will be described in a moment, it's best to pick one or the other.

The Best Interests of the Children

Whenever the court considers issues involving children, its first and foremost concern is the best interests of the children, not whatever the particular wishes of a parent might be, no matter how well-intentioned those wishes might be: it's not about you, it's about your kids. As a result, in any application concerning children you must show that the outcome you're looking for is the outcome which is in your children's best interests.

Section 16 of the Divorce Act is about custody and access and says this:

(8)In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Section 37 of the Family Law Act is titled "Best interests of child" and goes into more detail than the Divorce Act about what children's "best interests" means:

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:

(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

In making decision about custody and access under the Divorce Act, or parental responsibilities, parenting time and contact under the Famiy Law Act, the court will take into account a whole range of factors, including some of the following:

• Who looked after the child most of the time during the marriage?
• Does the child have a stronger bond with one parent than the other?
• How much will each parent work to encourage the child to spend time with the other parent?
• What plans do the parents have to look after and care for the child?
• How well can the parents co-operate and communicate with each other?
• How will the order proposed by the applicant affect the child?
• Will the proposed order be in the child's long-term best interests?
• Will the proposed order disrupt the child's present life? Is there an established status quo which the child has already settled into?
• Will the proposal disrupt the child's schooling, or take the child away from his or her friends and family?

You should bear in mind these quotes from Mr. Justice Spencer in Tyabji v. Sandana, a 1994 decision of the British Columbia Supreme Court:

"Custody is not awarded in any sense to punish the parent who is deprived of it. There is no contest between parents to see who most deserves the children nor who was the more responsible for the break-up of the family unit."

"Custody is a placement of the children with the person who, in the court's judgment, presents that prospect of care and upbringing which is in the best interests of the children."

Custody and Guardianship After Separation

The old Family Relations Act made presumptions about who would have custody and guardianship of the children after a couple had separated. In general, the person who had the children most of the time was said to have de facto custody and guardianship of the children, meaning having custody and guardianship as a matter of fact than because of a court order.

Under s. 39 of the new Family Law Act, while parents are living together and after they separate, both of them are presumed to the guardians of their children. These parents are guardians in fact and in law and do not need a court order to give them guardianship of their children. Other people who are presumed to be guardians are:

1. people who are parents under an assisted reproduction agreement; and,
2. a parent who do have never lived with the other parent but "regularly cares" for his or her child.

The Divorce Act does not make any presumptions about who has custody of the children after separation.

Legal Concepts About Care of of Children

Custody Under the Divorce Act

Custody is about the right to have the child with you and the right to make decisionc about how the child is reade

Custody can be awarded to one person, called "sole custody," or it can be shared between two parents, usually called "joint custody." Custody is a difficult and fuzzy concept to define because in British Columbia it shares a lot of its meaning with guardianship, and because whether custody held jointly or not has nothing to do with how much the child is with each parent.

The chapter Children > Custody offers a much better explanation of custody and its distinction from guardianship.

1. Sole Custody A parent who has "sole custody" has the household in which the child lives for the majority of the time. This parent may also have sole guardianship or the child, or the parents can be joint guardians of the child.

If a parent has sole custody of a child because of an order or an agreement and the order or agreement doesn't say anything about guardianship, the parent with sole custody will be assumed to also have sole guardianship of the child.

2. Joint Custody 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 share joint custody in situations where one of the parents 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.

Parents who have joint custody of a child will also have joint guardianship of the child.

3. Split Custody Parents have "split" custody of their children when one or more of the children live with each parent most of the time. The parents can have sole or joint custody of some or all of the children.

This sort of custodial arrangement is rarely imposed 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 with split custody may have sole guardianship of their children in their primary care or they may have joint guardianship of all of the children.

This sort of custodial arrangement will have an impact on the amount of child support each parent pays to the other, see the Child Support section for more information.

4. Shared Custody This is a kind of joint custody in which the child lives more or less equally with both parents, spending an equal or almost equal amount of time in each of the parents' homes. Although a typical situation of shared custody is where one parent has one week with the child and the other parent has the child for the following week, the amount of conscutive days each parent has with the child can be for more than one week, or the week can be split up, for example into a rotating two week pattern where the first week is split four/three and the second is split three/four, or into a rotating two/two/three pattern. Other arrangements are certainly possible, but they will usually be a lot more complicated and call for much more frequent exchanges of the child between his or her parents' homes.

Parents with shared custody will also have joint guardianship of their children.

This sort of custodial arrangement will have an impact on the amount of child support each parent pays to the other, see the Child Support section for more information.

5. Primary Residence A child's "primary residence" has nothing to do with custody, but may become an issue when the parents have joint custody of their children and a certain kind of joint guardianship of the children, usually guardianship defined on the Joyce model. In cases like that, it is sometimes necessary to specify which parent will be considered to have the child's primary residence as a part of allocating decision-making rights. The Joyce model of joint guardianship is described in the chapter Children > Guardianship.

Primary residence is also becoming used in situations of joint custody as a way of describing the home where the children will mostly reside without involving any additional legal implications. In cases of shared custody, the child's primary residence can be given to one parent, or it can switch from week to week according to where the child is living.

Primary residence is not a term you will find in the Family Relations Act or in the Divorce Act. It is a creation of the courts.

6. Birdnesting Like the concept of primary residence, birdnesting is not a term drawn from either the Family Relations Act or the Divorce Act.

Birdnesting refers to a kind of joint custody where the children live full-time in the family home with the parents moving 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 underlying theory here 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.

B. Guardianship Being a child's guardian means being the guardian of the child's estate and being the guardian of the child's person. Guardianship is talked about in more detail in the Children > Guardianship chapter.

Guardianship of a child's estate gives the guardian the right to deal with the child's property. Guardians are under an obligation to deal with the child's property only for the benefit of the child, and cannot use the child's property for their own personal benefit.

Guardianship of a child's person gives the guardian the right to care for the child, the right to make important medical, educational, therapeutic and religious decisions on behalf of the child, and the right to give instructions to and receive information from the teachers, doctors, dentists, and other professionals involved in the child's life. In a nutshell, guardianship of the person of a child is the right to direct and contribute to the child's upbringing.

Parents are not the only people who can be a child's guardians. Foster parents can be legal guardians, and when a worker with the Ministry for Children and Families places a child in care, the person with whom the child is placed will be the child's guardian. Parents can also designate a guardian in their will, so that the child will be cared for by that person if both parents die before the child becomes an adult.

1. Sole Guardianship A parent with sole guardianship of a child is the only person with the authority to make important decisions about the child's health and welfare and the parenting of the child. Unless the other parent has special permission, he or she is not entitled to make decisions about the child's religious education, medical treatment, counselling, schooling and extracurricular activities, or to obtain any information about the child from his or her teachers, doctors and coaches.

A parent with sole guardianship of a child will also have sole custody of the child.

2. Joint Guardianship In a joint guardianship arrangement, both parents have the right to participate in the child's upbringing, education, religious instruction, medical treatment and so forth. In such a situation, the parents are expected to be able to communicate with each other well enough to co-operatively make these decisions, and to work together for the sake of their child.

The terms of how guardianship issues will be handled can be vague or they can be very specific. Vague terms usually only say "the parents will have joint guardianship of the child." Specific terms usually define the meaning of guardianship with 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 share joint guardianship. These models are reproduced and are discussed in more detail in the Children > Guardianship chapter under the heading "Types of Guardianship."

The Joyce model is fairly detailed and require the parents 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. This is where the concept of "primary residence" comes into play, as the parent who has the child's primary residence or "primary care" usually has the right to make a final decision where the parents are unable to come to an agreement. The parent who doesn't have primary residence usually has the right to apply to court for a review of that decision.

The Charlton model is about each parent's right to participate in making decisions about all aspects of a child's life and requires parents to cooperate in making these decisions, with neither of them having the ultimate say.

The Horn model is more about the parents' rights to access information about the child, usually about the child's schooling, health and extracurricular activities. The Horn model implies that the parent with the child's primary residence will be enttiled to make decisions about the child as he or she sees fit, with the other parent having a right to information about the child. Under s. 32 of the Family Relations Act, however, that parent will always have the right to ask the court to reconsider any decision the parent with the children's primary residence may make.

Parents can have joint guardianship regardless of whether custody is held by one parent alone or is jointly held by both parents together.

3. Parallel Parenting This is a kind of joint guardianship suitable for high-conflict situations where each of the parents 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 parent assumes complete responsibility for the children when they are with that parent. A parent has no say over the actions of the other parent when the children are in that parent's care. There is no expectation of flexibility between the parents. A parent does not plan activities for the children when they are with the other parent. Contact between the parents is minimized and children are not asked to pass messages to the other parent. When the parents 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, parents who are parallel parenting are assigned specific areas of the children's lives that they will have authority over. For example, one parent might be responsible for educational and religious issues while the other is responsible for sports and music lessons.

Parents who have a parallel parenting arrangement will have joint custody of their children.

Parallel parenting is not a term you will find in the Family Relations Act or in the Divorce Act. It too is a creation of the courts.

C. Access This term describes the time that each parent has with the child. Usually, access means the contact arrangements for the parent with the least amount of time with the child. Access is a basic parental privilege; a parent is presumed to have the privilege of spending a regular, reasonable amount of time with his or her child and access will generally only be withheld when a parent poses a hazard to the child.

The amount of access a parent has depends entirely on the particular circumstances of the family, and a parent's access rights can be described on vague terms or with extreme detail. Vague terms usually say something like "Pat shall have liberal and generous access to the child." Detailed terms can include provision for specific drop-off and pick-up times, the sharing of driving, halves of birthdays, alternating holidays, extra time when there is a holiday Monday, Fathers' Day and Mothers' Day, the sharing of religious holidays and so forth. How detailed the terms of access need to be depends entirely on the circumstances of the parents, the level of commitment each parent has to be on time for access visits, and how flexible the parents are prepared to be with one another.

1. Access and Child Support It is very important to understand that a parent's access rights to a child are entirely different 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 will not look kindly on parents who have engaged in this sort of conduct.

2. Supervised Access Supervised access is a kind of access in which a parent's time with a child is monitored or supervised by another adult, often a friend, a family member or, in rare cases, a professional access supervisor. Supervised access can be extremely difficult for a parent, and is reserved for situations where there are grave concerns about a parent's fitness to see his or her children. There must, in general, be some legitimate hazard to the child for a parent's time with his or her child to be supervised.

A history of mental instability, physical abuse, sexual abuse, substance abuse, or past attempts to abduct the children or alienate the child from the other parent are among the factors which suggest that access should only be allowed on the condition that it is supervised.

3. Conditional Access Sometimes a court will order that a parent's access to his or her child will depend on that parent's fulfillment of one or more conditions. Normally, this is only required when there are concerns about a parent's behaviour when in the company of his or her children. Typical conditions of access might include requirements that: the parent not smoke in the presence of the children; the parent not drive with the children; or, the parent not drink alcohol before and during his or her time with the children. Pretty much any reasonable and legitimate concern can be made into a condition of a parent's access.

If the parent who is subject to the condition breaches that condition, the other parent will be justified in withholding the child from him or her on a scheduled access visit.

4. Parenting Time "Parenting time," and other synonyms such as "parenting schedule" and "parenting contact," are becoming popular alternatives to the term "access." An order or agreement might, for example, say that "Morgan will have parenting time with the child from Friday evening to Sunday evening on every second weekend," rather than saying "Morgan will have access from Friday evening to Sunday evening on every second weekend." Another alternative is to refer to an access schedule as the parent's scheduled "time with the child."

The point of using this language is to avoid the negative associations with the word "access." There is less of a stigma attached to "parenting time" than there is to "access," in the sense of the win/lose mentality discussed at the beginning of this chapter, and the use of the phrase "parenting time" also helps to recognize the importance of both parents to the child's life.

Grandparents and Other Non-Parents

People other than a child's biological 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, couldn't also have an interest in a child. Most often, however, it's grandparents who feel the need to seek a legal role in their grandchildren's lives. For that reason, this segment is primarily directed to grandparents, although it applies equally to other non-parents.

Grandparents and other non-parents normally become involved in law suits dealing with children, as parties in their own right, in only a few situations:

where one or both of the natural parents of the children are dead; where one or both parents have abandoned the children or the care of the children; where there are serious concerns about the fitness of the parents to care for the children; or, where they are being denied time or involvement with the children. Their concerns are usually about:

getting access to the children; supervising the parenting of the children; or, getting custody of the children. No matter how valid or legitimate a grandparent's or other non-parent's concerns might be, the court will place a great deal of weight on the wishes of the parents. In a 2003 case of the British Columbia Supreme Court, M.(D.W.) v. M.(J.S.), the court said that while it must give "paramount consideration" to the best interests of the child, "significant deference must be accorded to the custodial parent and that parent's ability to determine the child's best interests."

A. Legislation Two laws might apply to non-parents seeking custody or access to children. Where the children's parents are already in court about the children, that will be either the Divorce Act (where the parents are or were married) or the Family Relations Act. If the parents are not involved in court proceedings between each other, it will be the Family Relations Act.

Each law has different rules about how and when non-parents can apply in court, and it's important to understand which law might be applicable.

1. The Divorce Act According to s. 16(1) of the federal Divorce Act, the court can make an order for access and custody on the application of a parent 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, litigation must have already started between married spouses or formerly married spouses before the grandparents can step in; there must be an existing law suit in which the application is brought. A grandparent cannot start an action under the Divorce Act, since the act only applies to disputes between married spouses. Grandparents must ask the court for permission to be "joined" to the existing action.

If there is no action between the parents under the Divorce Act, grandparents can leap into the fray by applying under the Family Relations Act, whether the parents are fighting about things in court or not.

2. The Family Relations Act The provincial Family Relations Act speaks of "persons" who may exercise custody, guardianship or access, not of "parents" or "spouses." This means that anyone can seeks custody, guardianship and access to a child, not just the child's biological parents. In fact, s. 35(1.1) of the act expressly states that "persons" includes "parents, grandparents, other relatives of the child and persons who are not relatives of the child." The Family Relations Act is a lot more permissive than the Divorce Act, and non-parents do not need to get the court's permission before bringing an application.

The same principles apply to the rules about child support. Those sections also speak of "persons" rather than "parents" or "spouses." A person who has custody of a child can apply for child support, regardless of whether the person making the application is a parent or not.

Actions for custody, guardianship, access and child support can be brought by grandparents and other non-parents under the Family Relations Act in either the Supreme Court or the Provincial (Family) Court. It is not necessary to wait until the parents have started proceedings themselves before the application is made.

When a child's parents are involved in a family law proceeding between themselves, s. 18(2) of the Family Relations Act allows grandparents and other non-parents to apply to court for leave to "intervene" in the matter. People who are granted standing as intervenors in a proceeding have the right to present argument to the court, to say why the court should or shouldn't make a particular order. In most cases, intervenors aren't asking for an order for themselves, they're just arguing a particular point of a view about what the court should do in the case.

B. Custody There is a strong presumption in favour of the natural or adoptive parents of the children. The court will generally be inclined to allow the children to remain with their parent or parents unless a strong case can be shown that the parents are neglectful and that the children are suffering in their care. To quote from a 1992 case of the British Columbia Supreme Court, J.R. v. D.W.:

"Parental claims will not lightly be set aside except in clear cases where the welfare of the child cannot otherwise be achieved." The Supreme Court of Canada emphasized the children's best interests a bit more strongly in Racine v. Woods, a case from 1983:

"The law no longer treats children as the property of those who gave them birth but focuses on what is in their best interests." Nevertheless, grandparents and other non-parents seeking custody will face a difficult challenge, especially where both parents are still in the picture, even if they have been actively involved in caring for the children themselves. Since actual, concrete harm must usually be shown before grandparents are awarded custody, it can be critical to gather as much documentary evidence as possible. Some helpful sources include: police records; the records of social workers involved with the children; files from the Ministry for Children and Families; and, a psychologist's report.

Factors that the courts have taken into consideration in awarding custody to a non-parent have included:

ill-treatment, mistreatment and neglect of the children; chronic drug or alcohol use, a partying type of lifestyle; instability of the parent's lifestyle and living situation; abandonment of the children by the parents, or an existing status quo in which the non-parent is primarily responsible for the care of the children; and, poor parenting skills on the part of the biological parent. Grandparents and other non-parents should not be too discouraged by the generally pessimistic tone of this segment. There are quite a few cases in which grandparents have been awarded custody of their grandchildren; it is possible to succeed on a custody application, although the chances of success depend wholly on the circumstances of each case.

C. Access There is a big difference between seeking custody and seeking access. In custody cases, the courts are concerned with the fundamental living arrangements and health and welfare of the children. In access cases, the parent usually has custody, and the court is being asked to challenge the parent's right to control his or her child's upbringing. As a result, the court will place an even greater emphasis on the discretion and judgment of the parent.

Grandparents and other non-parents do not have a presumptive right of access to children under either the Divorce Act or the Family Relations Act, but they can ask the court to make an order giving them access to their grandchildren. The 1993 Supreme Court of British Colmbia case of Chapman v. Chapman sets out the general rules governing applications for access by non-parents.

The burden is on the non-parent to show that the proposed access is in the child's best interests. The child's parents have a significant role and the court should be slow to interfere with the parents' discretion, and should only do so when satisfied that the access is in the child's best interests. It is not in the child's best interests to be placed in circumstances of conflict between parents and non-parents, and access should not be given where it would only escalate the conflict between the parties. Non-parents may also have to demonstrate that they offer some positive benefit to the child before access will be allowed, and they must demonstrate that the child's time with them will be in the child's best interests. Normally, grandparents and other non-parents are allowed only the amount of access that the parents will agree to.

Where both parents are still in the picture, the court will usually require that grandparental access occur during the time that their child has the grandchild. In otherwords, maternal grandparents will usually have access, if the court makes the order at all, during the mother's time with the child.

Where only one parent is in the picture, the court will usually determine what access the grandparents ought to have independently of the interests of the grandparent's child.

As with custody applications, grandparents and other non-parents should not be discouraged by the generally pessimistic tone of this segment. There are numerous cases in which grandparents have been awarded time with their grandchildren; it is possible to succeed on an access application.

D. Financial Support When a non-parent obtains custody of a child, or even just the child's primary residence without an express order regarding custody, that person can apply for child support against the biological parents of the child. The same rules will apply to a non-parent's application for child support as apply to a parent's application, except that grandparents and other non-parents can only apply for child support under the Family Relations Act, they cannot apply under the Divorce Act. See the section Child Support for more information on this topic generally.

Grandparents are also entitled to ask for financial support from the provincial government to defray the cost of caring for any grandchildren in their care. The province of British Columbia pays grandparents looking after their grandchildren at the same rate as foster parents. It's not a princely sum, but it's better than a kick in the teeth.

Further Reading in this Chapter

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Page Resources and Links

Legislation

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Links

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