Difference between revisions of "Children and Parenting after Separation"

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{{JP Boyd on Family Law TOC}}
{{JP Boyd on Family Law TOC}}


When a couple involved in a family law dispute have children, they must make decisions about four important issues: custody, guardianship, access and the payment of child support. This section will review the first three of these issues in detail. The fourth issue is covered in the next section, Child Support, which also features a handy child support calculator.
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 important 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 chapter provides an introduction to custody, guardianship and access, and looks at traditional and developing concepts in the law about children. It also discusses the rights and interests that grandparents and other non-parents might have in respect of someone else's children.
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.


Other legal issues relating to children, such as family violence, naming and adoption, are discussed in the section Other Family Law Issues.
==Introduction==


I. 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.


There are two laws that deal with issues about the care and control of children when parents separate, the federal Divorce Act and the provincial Family Relations 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. 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 arrangement 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.


Most of the chapters in this section talk about how the court makes these decisions and the laws that apply to different parents in different situations. The next chapter, Children > 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, 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? And, perhaps most importantly, how can the children be best helped to grow and mature into adults with families of their own?


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, 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? 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 and control 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''===


There's a lot more to dealing with the care and control of children after separation than what you'll find in the Divorce Act and the Family Relations 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.
For married spouses, the law regarding about children after separaton 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''.


A. The Divorce Act and the Family Relations Act
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For married couples, the law regarding custody, guardianship and access is governed by the federal Divorce Act as well as the provincial Family Relations Act. For unmarried parents, including common-law couples, the only governing law is the Family Relations Act.


Married couples typically seek relief under both the federal and the provincial legislation. Typically, married couples make a claim under just the Family Relations Act when:
Married couples typically seek relief under both the federal and the provincial legislation. Typically, married couples make a claim under just the Family Relations Act when:
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Note that guardianship is not dealt with in the Divorce Act. In proceedings under that act, guardianship is considered to be an aspect of custody. Other than this one exception, there really aren't any significant differences between the Divorce Act and the Family Relations Act in terms of the law relating to custody and access.
Note that guardianship is not dealt with in the Divorce Act. In proceedings under that act, guardianship is considered to be an aspect of custody. Other than this one exception, there really aren't any significant differences between the Divorce Act and the Family Relations Act in terms of the law relating to custody and access.


B. The Best Interests of the Children
===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 are, 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.
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 are, 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.


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De facto custody and guardianship may not mean a great deal, however, as they aren't legal concepts that the police will recognize and they don't create a permanent legal entitlement to custody, just a presumption which sometimes helps when the other parent has little or no involvement in the children's lives.
De facto custody and guardianship may not mean a great deal, however, as they aren't legal concepts that the police will recognize and they don't create a permanent legal entitlement to custody, just a presumption which sometimes helps when the other parent has little or no involvement in the children's lives.


Back to the top of this chapter.
==Traditional and Developing Legal Concepts==
 
II. Traditional and Developing Legal Concepts


It is safe to say that the old-fashioned legal ideas about the care and control of children are not going to change in the blink of an eye. However, both the courts and the governments are moving towards new ways of looking at these ideas in an effort to avoid some of the stereotypes and the win/lose mentality sometimes associated with those traditional ideas.
It is safe to say that the old-fashioned legal ideas about the care and control of children are not going to change in the blink of an eye. However, both the courts and the governments are moving towards new ways of looking at these ideas in an effort to avoid some of the stereotypes and the win/lose mentality sometimes associated with those traditional ideas.
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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.
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.


Back to the top of this chapter.
==Grandparents and Other Non-Parents==
 
III. 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.
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.
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