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

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=== 1. Factors in Awarding Custody ===
=== 1. Factors in Awarding Custody ===


The factors that the Court must consider in determining the “best interests of the child” are set out in, s 37 of the ''FLA'', and at s 16 of the ''DA''. It is important to note that these factors should not be viewed like a checklist or a firm “rubric” with solid weights for each point. Rather, the discretionary, contextual, and complex nature of custody cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interests argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.
The factors that the Court must consider in determining the “best interests of the child” are set out in, s 37 of the ''FLA'':


Some of these factors include the child’s health and emotional well-being, his or her education and training and the love, affection and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. (The ''FLA'' presumptively considers the views of the child.) For a custody order relating to a teenager to be practical, it  must reasonably conform to the wishes of the child (''O’Connell v McIndoe'' (1998), 42 R.F.L. (4th) 77 (BCCA), ''Alexander v Alexander'' (1988), 15 R.F.L. (3d) 363 (BCCA)).  
* (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.
 
and at s 16(8-10) of the ''DA'':
 
* (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.
* (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
* (10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
 
It is important to note that these factors should not be viewed like a checklist or a firm “rubric” with solid weights for each point. Rather, the discretionary, contextual, and complex nature of custody cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interests argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.
 
The Court will generally consider the child’s health and emotional well-being, his or her education and training and the love, affection and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a custody order relating to a teenager to be practical, it  must reasonably conform to the wishes of the child (''O’Connell v McIndoe'' (1998), 42 R.F.L. (4th) 77 (BCCA), ''Alexander v Alexander'' (1988), 15 R.F.L. (3d) 363 (BCCA)).  


Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality and moral fitness of each parent. However, there is no presumption against the separation of siblings (''P (AH) v P (AC)'', 1999 BCCA 203). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also  considers psychological, spiritual, and emotional factors (''King v Low'',(1985), 44 R.F.L. (2d) 113 (SCC)). The Court will take into account  the personality, character, stability, and conduct of a parent, if appropriate (''Bell v Kirk'' (1986), 3 R.F.L. (3d) 377 (BCCA)).  
Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality and moral fitness of each parent. However, there is no presumption against the separation of siblings (''P (AH) v P (AC)'', 1999 BCCA 203). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also  considers psychological, spiritual, and emotional factors (''King v Low'',(1985), 44 R.F.L. (2d) 113 (SCC)). The Court will take into account  the personality, character, stability, and conduct of a parent, if appropriate (''Bell v Kirk'' (1986), 3 R.F.L. (3d) 377 (BCCA)).  
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Clients may wish to vary a custody order. The threshold for a variation of a custody or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents (''Gordon v Goertz'', 2001 BCSC 649).  
Clients may wish to vary a custody order. The threshold for a variation of a custody or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents (''Gordon v Goertz'', 2001 BCSC 649).  


Section 211 of the ''FLA'' allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over custody is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an ''FLA'' Section 211 report (''Gupta v Gupta'', 2001 BCSC 649).  
Section 211 of the ''FLA'' allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over custody is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an ''FLA'' Section 211 report (''Gupta v Gupta'', 2001 BCSC 649).


=== 2. Types of Custody Orders ===  
=== 2. Types of Custody Orders ===  
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