Custody and Access, Guardianship, Parenting Arrangements and Contact (Script 142)

For couples that are thinking about separating or have already separated, the continued parenting of the children is often the biggest concern. This script discusses custody and access under the Divorce Act and guardianship, parenting arrangements and contact under the Family Law Act. It applies to anyone who is a parent, regardless of the nature of the parents’ relationship with each other.

Which law applies?

Both the federal Divorce Act and the provincial Family Law Act talk about the care of children when their parents have separated. The Divorce Act only applies to parents who are or were married to each other. The Family Law Act applies to all parents, whether they were in married or unmarried spousal relationship, were in a dating relationship or were not in any relationship.

What does “custody” mean?

Custody is a term used by the Divorce Act. It means the right to exercise a parent’s authority over a child and includes the right to say how a child is raised and make decisions on behalf of the child, like where the child goes to school, how the child gets treated when sick and what sports the child plays.

What are the different ways to decide custody?

Parents can have custody of a child after they separate; this is called “joint custody”; or when only one parent has custody of a child, it is called “sole custody”. When a parent has sole custody, only that parent has parental authority over the child.

Custody is usually resolved by a written agreement between the parents or by going to court and applying for an order about custody. Most of the time, parents have joint custody of their child. Joint custody does not mean that the child’s time is divided equally between the parents, although that is a common way of distributing children’s time between parents, but it does mean that the parents have to work together when making decisions about the child.

Sole custody can be awarded to a parent if: there has been family violence; the other parent has drug or alcohol problems; the parents are constantly arguing with each other about parenting decisions; the other parent has been absent from the child’s life; or for other similar reasons.

What does “access” mean?

Access is a term used by the Divorce Act. It usually refers to the visitation schedule of the parent with the least amount of time with the children.

A parent’s access agreement or order can sometimes contain conditions that the parent do or not do something during the access visit, such as smoking, drinking alcohol or driving with the child in the car. Access that depends on certain conditions of a parent’s behaviour is called “conditional access”.

Where there is a serious risk to the safety of the child, a parent’s access can be subject to the requirement that the access occur in the presence of another adult. This is called “supervised access”.

How is access decided?

Access is settled the same way as custody – either by court order, written agreement or the parents’ informal arrangements. When parents must go to court, the court will make a decision based on the best interests of the child. The court’s only concern is the best interests of the child and choosing the access arrangement that is best for the child.

What does “guardianship” mean?

Guardianship is a term used in the Family Law Act. Guardians are the people, usually parents, who are responsible for a child’s upbringing and wellbeing. Guardians exercise “parental responsibilities” and have “parenting time” with a child, which will be discussed in a moment.

Who is a guardian?

The Family Law Act says that parents who live together are presumed to be the guardians of their child, during their relationship and after they separate. A parent who never lived with his or her child is not presumed to be a guardian of the child unless:

• the parent “regularly cares” for the child;
• the person is a parent because of an assisted reproduction agreement; or
• the parent and all of the child’s guardians make an agreement that the parent will be a guardian.

Someone who is not a guardian can become a guardian by a court order appointing him or her as a guardian or by being appointed a guardian on a guardian’s death or incapacity or, in the case of a parent, by agreement if the other guardians agree.

How do you apply to be appointed as a guardian?

Only people who aren’t already guardians because of the presumptions in the Family Law Act may apply to court to be appointed as the guardian of a child. People applying for appointment as a guardian must complete a special form of affidavit required by the rules of court. This affidavit requires you to get: a criminal records check; a protection order registry check and a records check from the Ministry for Children and Family Development; provide the details of any court proceedings that are relevant to the child’s best interests; and, provide information about the children that are and have been in your care.

How do you appoint someone as guardian upon your death or incapacity?

A guardian can appoint another person to become the guardian of his or her child upon death by will or by Form 2 of the Family Law Act Regulation. A guardian who is facing a terminal illness or a permanent mental incapacity can appoint another person to become a guardian when he or she is no longer able to act as guardian using Form 2.

A guardian cannot appoint a guardian with more parental responsibilities than those that she or he has at the time of the appointment.

What do “parental responsibilities” and “parenting time” mean?

Parental responsibilities is a term used in the Family Law Act. It refers to guardians’ responsibility for making decisions about how the child is nurtured and raised, and the duty of making those decisions in the best interests of the child.

Parenting time is another term used in the Family Law Act. The time a guardian has with a child is called parenting time. During a guardian’s parenting time, the guardian is responsible for the care of the child and decision-making about day-to-day matters involving the child.

People who are not guardians, including parents who are not guardians, do not have parental responsibilities or parenting time.

How are parental responsibilities and parenting time decided?

Parental responsibilities and parenting time are decided either by a court order or the written agreement of the child’s guardians. Where guardians must go to court, the court will make a decision based only on the best interests of the child. The court’s only concern is the best interests of the child.

Parental responsibilities can be shared between two or more guardians, which usually means that they are all responsible for making decisions about the child and must make those decisions in consultation with one another. Parental responsibilities also can be allocated among guardians, so that a guardian has sole responsibility for certain kinds of decisions, like about health care or schooling, and can make those decisions without having to consult the other guardians.

The arrangements made in an agreement or order for parental responsibilities and parenting time are known as “parenting arrangements”.

What is “contact”?

Contact is a term used in the Family Law Act. Contact is the time that someone who is not a guardian has with a child. Parents who are not guardians may have contact, as might grandparents, aunts and uncles, other family members or any one else who has an important relationship with a child.

How is contact decided?

Contact is decided the same way as parenting time – either by a court order or by the written agreement of the person with contact and the child’s guardians. When people must go to court, the court will make a decision based only on the best interests of the child. The court’s only concern is the best interests of the child.

Can a child decide whom to live with?

The Family Law Act requires that a child's views be considered, unless it would be inappropriate to do so. If a child is old enough and mature enough, the judge will consider the child’s wishes when determining arrangements for custody, parenting time and contact. The importance given to the child’s views will depend on the age and maturity of the child, the reason why the child wishes to live with a particular person, and how strongly the child feels about wanting to live with that person. But there is no particular age at which children have the right to decide who they will live with. However, in general the older the child is, the more weight the court will give to the child’s wishes. Usually, the wishes of a child over age 12 are taken into consideration, and an older teenager’s wishes are likely to be decisive.

What about “needs of the child assessments”?

Section 211 of the Family Law Act allows the court to order an assessment, prepared by a social worker, a psychologist, a psychiatrist or another mental health professional, of:

• the wishes of a child;
• the needs of a child; and,
• the capacity of a person to meet the child’s needs.

These assessments will usually make recommendations about the sort of parenting arrangements and contact that the assessor considers to be in the best interests of the child.

These assessments are known as needs of the child assessments. (Under the old Family Relations Act, these were known as “section 15 reports” or “custody and access reports”.) They can cost $5,000 or more. A report can also be prepared for free by a Family Justice Counsellor, but it may take eight months or longer to complete.

What about “views of the child reports”?

A views of the child report, sometimes called a “hear the child report”, describe the child’s views about a particular issue or about how the child is experiencing his or her parents’ separation.

These reports can be prepared by a mental health professional under section 211 of the Family Law Act. Reports prepared by mental health professionals are usually evaluative, which means that the mental health professional may offer an opinion about what the child has said.

Non-evaluative views of the child reports can be prepared under section 202 of the Act. Non-evaluative reports simply repeat what the child has told the person preparing the report, and do not offer an opinion. These reports are also prepared by mental health professionals but can also be prepared by Family Justice Counsellors or any one with special training, including a lawyer.

Are orders and agreements about custody and access, and parenting arrangements and contact, final?

No order or agreement about these issues is ever absolutely final. Orders and agreements about custody and access, and parenting arrangements and contact, may be changed whenever there is a significant change in circumstances affecting the child, including because of a change in circumstances of another person, providing that the change affects the child’s best interests and justifies changing the order or setting aside the agreement.

Do you need a lawyer?

You are not required to retain a lawyer, however it is strongly recommended that you obtain legal advice and representation where possible. Orders about custody or parenting arrangements can be made in the Supreme Court. Orders about parenting arrangements can also be made in Provincial Court. If you go to Provincial Court, most court registries will require you to take a free government-sponsored “Parenting After Separation” course before you can be heard by the court. Many people find the course to be very helpful, and you should consider taking the course whether the court requires you to take the course or not.

Should you try to mediate or use collaborative settlement processes?

Mediation and collaborative settlement processes are excellent ways to help parents reach an agreement on custody and access, and parenting arrangements and contact.

Mediation can help avoid a bitter court dispute – including going to court in the first place. Apart from paid, private mediators, the provincial government has trained mediators, called Family Justice Counsellors, who don’t charge for their services and are available to help couples come to an agreement about parenting. Call Service BC at 604.660.2421 in the lower mainland, 250.387.6121 in Greater Victoria or 1.800.663.7867 elsewhere in BC. Remember that an agreement drafted by a Family Justice Counsellor will have long-term consequences and may be difficult to change, so be sure to get independent legal advice before signing it. Your lawyer can also refer you to a mediator. For more information on mediation, refer to script 111 on “Mediation and Collaborative Settlement Processes”.

Collaborative settlement processes are a kind of negotiation where you and the other party, along with your lawyers, agree to work together to resolve the problems arising from your separation without going to court. Collaborative processes often involve child specialists who give advice to the parties and their lawyers about the child’s needs and how the child is experiencing their separation.

What should you do if the other parent won’t follow the order or agreement?

The Family Law Act has special provisions for the enforcement of orders and agreements for parenting time and contact. In special circumstances, the court can also require police to help enforce these orders and agreements, however this should be a last resort only.

If you’re afraid the other parent is about to take your children out of the country and not bring them back, see a lawyer immediately. There are special provisions in the Family Law Act that can help with this too.

Where can you get help or more information?

• Refer to the Family Justice website of the provincial Ministry of Attorney General.
• See the Children section of the wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC
• The laws referred in this script are available at www.bclaws.ca or http://laws-lois.justice.gc.ca/eng/.

[Updated May 2017]

The above was last reviewed for legal accuracy by Zahra H. Jimale.

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