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Difference between revisions of "Parenting Orders, Guardianship, and Contact (3:XI)"
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Parenting Orders, Guardianship, and Contact (3:XI) (view source)
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Under the ''FLA'', police officer enforcement clauses can only be granted when there has been a breach of an order (s 231). | 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'' | 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'' makes it an offence for a non-custodial parent to abduct a child. Where a custody order is in effect, abduction amounts to contempt of Court. | ||
==== c) Parental Mobility (Under the FLA, this is referred to as Relocation which has separate considerations from that of Mobility under the DA) ==== | |||
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)). | |||
The child’s other guardian(s) can object to the relocation within 30 days of receiving the notice. If an objection is made, the guardian requesting the relocation must satisfy the court that (s 69(4)(a)): | |||
*(i) the proposed relocation is made in good faith, and | |||
*(ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life | |||
When considering the good faith requirement, the Court must consider (s 69(6)): | |||
*(a) the reasons for the proposed relocation; | |||
*(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; | |||
*(c) whether notice was given under section 66 [notice of relocation]; | |||
*(d) any restrictions on relocation contained in a written agreement or an order. | |||
Issues of parental mobility may arise in conjunction with custody issues. That is, one parent may wish to relocate away from another parent with whom they share custody. In ''Gordon v Goertz'', [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the ''DA''. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views. | |||
''One v One'', 2000 BCSC 1584, also a ''DA'' case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests: | |||
*d) the parenting capabilities of and the child’s relationship with parents and their new partners; | |||
*e) employment, security and prospects of the parents and, where appropriate, their partners; | |||
*f) access to and support of extended family; | |||
*g) the difficulty of exercising the proposed access and the quality of the proposed access if the move is allowed; | |||
*h) the effect of the move on the child’s academic situation; | |||
*i) the psychological and emotional well-being of the child; | |||
*j) the disruption of the child’s existing social and community support and routine; | |||
*k) the desirability of the proposed new family unit for the child; | |||
*l) the relative parenting capabilities of either parent and the respective ability to discharge parentingresponsibilities; | |||
*m) the child’s relationship with both parents; | |||
*n) the separation of siblings; | |||
*o) the retraining or educational opportunities for the moving parent. | |||
== E. Access == | |||
"Access" is the term under the ''DA''. Under the ''FLA'', it is called "Parenting Time" for guardians, or "Contact" for non-guardians. | |||
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''. | |||
Unless a parent poses a risk to the safety or well-being of the child, he or she will usually be allowed access or visiting rights. Courts can make an order for access and may view a custodial parent who denies access as acting against the best interests of the child. | |||
'''NOTE:''' It is important to note that access is a distinct and separate issue from child support. '''Denial of access is not grounds to withhold support; nor is a failure to pay support grounds for withholding access.''' | |||
=== 1. Factors Considered in Making an Access Order === | |||
The overriding principle remains the '''best interests of the child'''. The courts will not be bound by the wishes of the child, although the child’s views can be a powerful factor. When the '''FLA''' came into force, it introduced an overarching consideration “'''to ensure the greatest possible protection of the child’s physical, psychological, and emotional safety.'''” It can be argued that this consideration is functionally in place already, however. The courts will look into several factors in making access orders. These include: | |||
*The age of the child: older children will be allowed longer visits, but courts will also consider the wishes of children over 12 who may not wish to see the non-custodial parent; | |||
*Distance between homes: if the distances are great, courts may order longer stays; | |||
*Conduct of the non-custodial parent: access can be denied for reasons such as alcoholism, abuse, past attempts to abduct the child, or attempts to alienate the child from the custodial parent; | |||
*Health of the non-custodial parent: if health problems limit the non-custodial parent’s ability to care for the child, access may be limited; | |||
=== 2. Types of Access Orders === | |||
==== a) Interim Orders ==== | |||
After making an interim custody order, a court will often grant access on an interim basis. Usually, such an order will favour the status quo, so as to minimize disruption for the child. | |||
==== b) Specified and Unspecified Access ==== | |||
Specified orders set out the times and places at which the non-custodial parent must have access to the child. Specified orders are generally preferred. Unspecified access is less common and is ordered when the parents are willing to accommodate one another. | |||
==== c) Conditional Access ==== | |||
Courts may impose requirements, such as not smoking or using drugs or alcohol in the presence of the child. If the parent fails to meet the condition, access may be denied. | |||
==== d) Supervised Access ==== | |||
Courts may order visits to be supervised by a designated third party if there are concerns about abuse, abduction, mental and physical handicaps or attempts to alienate the child from the custodial parent. It is up to the custodial parent to demonstrate that access should be supervised. | |||
'''NOTE:''' There are no filing fees nor does a person need legal representation in Provincial Court, making it a more accessible option for many clients. | |||
=== 3. Extra-provincial Custody and Access Orders === | |||
Under the ''FLA'', the Court may exercise its jurisdiction to make custody and access orders if one of the following conditions is met: | |||
#the child was “habitually resident” in BC (s 74(2)(a)). | |||
#If the child is not habitually resident in B.C., the Court must at the commencement of the application order be satisfied that (s 74(2)(b)): | |||
#*i. the child is physically present in British Columbia when the application is filed, | |||
#*ii. substantial evidence concerning the best interests of the child is available in British Columbia, | |||
#*iii. no application for an extraprovincial order is pending before an extraprovincial tribunal in a place where the child is habitually resident, | |||
#*iv. no extraprovincial order has been recognized by a court in British Columbia, | |||
#*v. the child has a real and substantial connection with British Columbia, and | |||
#*vi. on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia; | |||
#the child is physically present in British Columbia and the court is satisfied that the child would suffer serious harm if the child were to (s 74(2)(C)) | |||
#*i. remain with, or be returned to, the child's guardian, or | |||
#*ii. be removed from British Columbia. | |||
B.C. courts are required to enforce extra-provincial orders (s 75) with certain exceptions (s 76). Such exceptions include the child would suffer serious harm if he/she was returned to the guardian or leaving British Columbia (s 76(1)(a)). | |||
If one spouse is not in B.C., the only B.C. Court that the B.C. residing spouse can proceed in is the B.C. Supreme Court, because the Provincial Court has no jurisdiction outside of the province. | |||
== F. Guardianship == | |||
Guardianship may be the most important aspect of any legal arrangements concerning the care and control of the children. Guardianship encompasses the whole bundle of rights and obligations involved in parenting a child, including making decisions about the child’s school, moral instruction, religion, health care, dental care, extracurricular activities, etc. | |||
When they are still together, parents are presumed to be joint guardians, playing a “full and active role” in the upbringing of the child (see e.g. ''Charlton v Charlton''). Upon marital breakdown, this can change either by agreement, by order of the Court, or by the operation of section 39 of the ''FLA'', which defines whether someone is a guardian. | |||
Under the ''FLA'', guardianship is primarily governed by sections 39, 41, and 42. | |||
Parents can also appoint a guardian in a will. If the parents are both dead or have abandoned the child,the Public Guardian and Trustee becomes the child’s guardian. | |||
While a child’s parents are living together and after the child’s parents separate, each parent of the child is the child’s guardian (s 39). However, an agreement may be made to provide that a parent is not the child’s guardian. A parent who has never resided with a child is not the child’s guardian unless there is an agreement made under section 30 of the ''FLA'', the parent and all of the child’s guardians make an agreement providing that the parent is also a guardian, or the parent regularly cares for the child. Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship. | |||
Section 41 of the ''FLA'' lists out the parental responsibilities with respect to a child: | |||
*(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervisionof the child; | |||
*(b) making decisions respecting where the child will reside; | |||
*(c) making decisions respecting with whom the child will live and associate; | |||
*(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; | |||
*(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity; | |||
*(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; | |||
*(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; | |||
*(h) giving, refusing or withdrawing consent for the child, if consent is required; | |||
*(i) receiving and responding to any notice that a parent or guardian is entitled or required by law toreceive; | |||
*(j) requesting and receiving from third parties health, education or other information respecting the child; | |||
*(k) subject to any applicable provincial legislation, | |||
**(i) starting, defending, compromising or settling any proceeding relating to the child, and | |||
**(ii) identifying, advancing and protecting the child's legal and financial interests; | |||
*(l) exercising any other responsibilities reasonably necessary to nurture the child's development. | |||
Section 42 of the ''FLA'' defines parenting time as time that a child is with a guardian. During this parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions | |||