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Difference between revisions of "Custody and Access"
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===The ''Divorce Act''=== | ===The ''Divorce Act''=== | ||
The ''[[Divorce Act]]'' describes children as ''children of the marriage'', and | The ''[[Divorce Act]]'' describes children as ''children of the marriage'', and section 2(1) of the act defines a child of the marriage as the child of one or both spouses, providing that the child is under the age of majority at the time, or older but unable to withdraw from the care of their parents. The ''Divorce Act'' is only available to parents who are or used to be married to each other. The person making the application under the ''Divorce Act'' must have been ''habitually resident'' in the province in which the application is made for at least one year. | ||
These are the important sections of the ''[[Divorce Act]]'' which talk about custody and access: | These are the important sections of the ''[[Divorce Act]]'' which talk about custody and access: | ||
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====Spouses==== | ====Spouses==== | ||
According to | According to section 16(1) and (4) of the ''[[Divorce Act]]'', any person or persons can be granted custody of or access to a child. Where that person is not a spouse, they must apply to the court under section 16(3) for permission to apply for a custody or access order. The court <span class="noglossary">will</span> grant custody and access to people other than parents and stepparents in the right circumstances. | ||
====People other than parents and stepparents==== | ====People other than parents and stepparents==== | ||
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===Factors in custody awards=== | ===Factors in custody awards=== | ||
There are two sets of factors that the court will consider in making an order for custody: the factors set out in the legislation and the additional factors that have developed through the courts. As far as the legislation is concerned, | There are two sets of factors that the court will consider in making an order for custody: the factors set out in the legislation and the additional factors that have developed through the courts. As far as the legislation is concerned, section 16(8) of the ''[[Divorce Act]]'' provides that: | ||
<blockquote><tt>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.</tt></blockquote> | <blockquote><tt>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.</tt></blockquote> | ||
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There is no guaranteed way to predict the outcome of a battle for custody. Some people believe that the courts will prefer giving custody of children to their mothers; others believe that the courts have adopted a more modern approach which focuses on parenting rather than on gender. Either way, the critical factor in a custody award is the best interests of the child. The parent who is obviously the primary caregiver will usually be the person with whom it is in the child's best interests to remain. | There is no guaranteed way to predict the outcome of a battle for custody. Some people believe that the courts will prefer giving custody of children to their mothers; others believe that the courts have adopted a more modern approach which focuses on parenting rather than on gender. Either way, the critical factor in a custody award is the best interests of the child. The parent who is obviously the primary caregiver will usually be the person with whom it is in the child's best interests to remain. | ||
While both the ''Divorce Act'' and the ''Family Law Act'' speak of a child's best interests, section 16(10) of the ''Divorce Act'', the ''Maximum Contact Principle'', flies in the face of the ''Family Law Act's'' presumption in | While both the ''Divorce Act'' and the ''Family Law Act'' speak of a child's best interests, section 16(10) of the ''Divorce Act'', the ''Maximum Contact Principle'', flies in the face of the ''Family Law Act's'' presumption in section 40(4) that in making parenting arrangements, no particular arrangement is presumed to be in the best interests of a child. | ||
===Factors in access awards=== | ===Factors in access awards=== | ||
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:#each spouse will have the obligation to discuss with the other spouse any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction, and general welfare, | :#each spouse will have the obligation to discuss with the other spouse any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction, and general welfare, | ||
:#the spouses will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions, | :#the spouses will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions, | ||
:#in the event that the spouses cannot reach agreement on a significant decision despite their best efforts, the spouse with the primary residence of the child will be entitled to make those decisions and the other spouse will have the right to apply for an order respecting any decision the spouse considers contrary to the best interests of the child, under | :#in the event that the spouses cannot reach agreement on a significant decision despite their best efforts, the spouse with the primary residence of the child will be entitled to make those decisions and the other spouse will have the right to apply for an order respecting any decision the spouse considers contrary to the best interests of the child, under section 16(1) of the ''Divorce Act'', and | ||
:#each spouse will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third-party caregivers. | :#each spouse will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third-party caregivers. | ||
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Split custody is a term used by the Federal [[Child Support Guidelines]] to describe a kind of parenting situation in which one or more of the children live mostly with each parent. The parents may have sole custody of the children in their care or they may have joint custody of all of the children, regardless of where the children live. | Split custody is a term used by the Federal [[Child Support Guidelines]] to describe a kind of parenting situation in which one or more of the children live mostly with each parent. The parents may have sole custody of the children in their care or they may have joint custody of all of the children, regardless of where the children live. | ||
This is a fairly unusual order as it requires the separation of siblings and there is a risk that they may grow apart from each other as time passes. These sorts of orders are only made where there is clear evidence that it is in the best interests of all of the children to fracture the family unit, such as when the siblings are constantly fighting or at each other's throats, or when one child has a particular attachment to a parent not wholly shared by the other children. In such cases, a needs of the child assessment, prepared under | This is a fairly unusual order as it requires the separation of siblings and there is a risk that they may grow apart from each other as time passes. These sorts of orders are only made where there is clear evidence that it is in the best interests of all of the children to fracture the family unit, such as when the siblings are constantly fighting or at each other's throats, or when one child has a particular attachment to a parent not wholly shared by the other children. In such cases, a needs of the child assessment, prepared under section 211 of the ''[[Family Law Act]]'', confirming that the children should be split apart is essential. | ||
==Types of access order== | ==Types of access order== | ||
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Section 40(4) of the ''Family Law Act'' specifically sets out that "...no particular arrangement is presumed to be in the best interests of the child...." | Section 40(4) of the ''Family Law Act'' specifically sets out that "...no particular arrangement is presumed to be in the best interests of the child...." | ||
Even if your matter is proceeding under the ''Divorce Act'', the British Columbia Supreme Court in a case called [https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc925/2016bcsc925.html?resultIndex=1 ''D.M.L. v. D.B.L''] confirmed that the maximum contact principle is not absolute, and that the court will only give effect to the maximum contact principle to the extent that it is consistent with the best interests of the child. Moreover, in determining what is in the best interests of a child, the court can consider the factors listed in | Even if your matter is proceeding under the ''Divorce Act'', the British Columbia Supreme Court in a case called [https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc925/2016bcsc925.html?resultIndex=1 ''D.M.L. v. D.B.L''] confirmed that the maximum contact principle is not absolute, and that the court will only give effect to the maximum contact principle to the extent that it is consistent with the best interests of the child. Moreover, in determining what is in the best interests of a child, the court can consider the factors listed in section 37(2) of the ''Family Law Act.'' | ||
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