Custody

Child Custody

The BC child custody, guardianship and parenting responsibilities information below is general in nature and not intended to be a substitute for legal advice. If you are concerned about custody and guardianship of or access to your child, soon to be called guardianship, parenting time and contact then please contact our family law offices. Our highly rated and reviewed child custody lawyers act throughout British Columbia from any of our 4 offices in Vancouver, Surrey, Kelowna and Fort St John.

Bill 16 being the Family Law Act  which will come into effect on March 18 2013 provides for important changes to Provincial  child custody and access legislation in BC as follows:

  • there is a huge change in terminology from custody and access to parental responsibilities, parenting time and contact and a framework for addressing cases where a parent wishes to relocate with a child, which tend to be very high conflict cases;
  • making the best interests test the “only” consideration rather than the “paramount” consideration;
  •  a change in determining whether to consider the views of the child from “if appropriate” in the Family Relations Act to “unless it would be inappropriate.” This change shifts the presumptive starting point: the child’s views will be considered unless there is a reason why they should not be, rather than starting from the position that the views will not be considered unless justified;
Child Custody Lawyers

Child Custody Lawyers at MacLean Family Law

The new regime changes certain presumptions, favours more parental cooperation encourages alternative dispute resolution and creates a statutory relocation regime for the first time in Canadian history, highlights include:

1. a comprehensive scheme to determine a child’s legal parents, including in situations where reproductive technology has been used.

2. Make children’s best interests the only consideration in parenting disputes and identify children’s safety as an overarching objective of the best interests of the child test. Add further best interests’ factors, including the history of the child’s care, family violence, and consideration of civil or criminal proceedings relevant to the safety or well-being of the child. Provide for consideration of a child’s views unless it would be inappropriate to encourage greater inclusion of children’s views.

3. Enact reforms to the Act’s treatment of guardianship, including the following:
Replace the terms custody and access with guardianship and parenting time. Define guardianship through a list of parental responsibilities that can be allocated to allow for more customized parenting arrangements.

4. Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.
Consolidate guardianship of children into the new law by including testamentary and standby guardianship.

5. Include a new range of tools and remedies to address non-compliance with orders and agreements for time with a child:
Remedies range from moderate to extraordinary remedies depending on the facts of the situation and history of non-compliance.
Provide different remedies for failure to allow parenting time/contact and failure to exercise parenting time/contact.

6. Introduce a relocation regime that aims to increase certainty and predictability of the law of relocation, the highlights of which are:
Include a mandatory 60-day notice-of-move provision, to provide an opportunity for parties to try to resolve any disputes about the proposed move.
List factors that must be considered (e.g. the reasons for the proposed move and whether the proposed move is likely to enhance the general quality of life of the child and the guardian planning the move) and factors that must not be considered (e.g. whether the guardian would be willing to move without the child in any event). Include presumptions to be applied where the proposed move is contested. Under the new act, a guardian who wants to relocate (move) with a child must give 60 days’ notice to every other guardian or person who has contact with the child, unless the guardian has obtained a court order that says he or she does not have to give notice before moving. A relocation is any move that will have a “significant impact” on the child’s relationship with the other guardian or person with contact (usually the child’s other parent).
A guardian who does not approve of the child’s move must file an objection in court within 30 days of receiving the notice. YOU have to have guardianship to file the notice of objection so this area where a parent has only access soon to be called contact will be contentious. The guardian can object on the basis that the move is not in the child’s best interests and different standards apply depending on the time sharing in existence before the application.

7. Add provisions relating to children’s property that would:
Enable a child’s guardian(s) to manage property below a certain monetary threshold without a court order. Provide court oversight of larger children’s trusts, including the appointment of private trustees.

Click Here for a free summary of the changes prepared by the government of BC

These changes are important and we recommend you speak with us to understand your legal rights and responsibilities regarding your children.

Child custody, guardianship and access rights/arrangements can come about by statute, agreement or Court order in Canada.

The Family Relations Act (FRA) which will soon be replaced by the new Family Law Act also sets Canada child custody and guardianship rights in the absence of an agreement or Court order. It also provides that custody, guardianship and/or access can be decided by agreement. Do not sign a separation agreement without independent legal advice.

Courts are not forced to accept the terms of an agreement between the parents and will look to the best interests of the child.

For married couples, it is possible to obtain Canada child custody and/or access orders under either the FRA soon to be replaced by the FLA (provincial legislation) or the Divorce Act (DA) (federal legislation). Unmarried couples may only obtain custody and/or access orders under the FRA soon to be replaced by the FLA. While the statutes do have some differences, the courts have interpreted them in a similar manner so that there are effectively few substantive differences.

Both the Provincial Family Court and the Supreme Court of British Columbia have jurisdiction over custody, guardianship and access matters under the FRA. However, parties seeking a divorce at the same time as a Canada child custody or access order are limited to proceedings in the Supreme Court.

A Court order granting custody or access under the DA may be obtained prior to, at the same time, or after, a divorce. In the case of unmarried couples, an order may be obtained at any time.

The distinction between Custody, Guardianship and Access


The word “custody” is sometimes used to mean mere physical custody and day-to-day care of the child. At other times, it is used in a broader sense to mean the full bundle of rights and responsibilities of a parent to a child (in effect, to mean something very close to guardianship). The Court often used the broad meaning and both the Divorce Act and the Family Relations Act have adopted a broad definition of custody that includes physical control over the child as well as the right to determine the child’s education, health care, religion, and other matters concerning the child’s well-being.

The Divorce Act does not mention guardianship but an order for custody under the Divorce Act gives the full bundle of parental rights and responsibilities unless some rights or responsibilities are reserved to another person by statute or court order.

“Guardianship” refers to the full bundle of parental rights and responsibilities. Guardianship is composed to two parts: guardianship of the estate of the child in which the guardian has the full bundle of parental rights regarding the child’s property; and guardianship of the person of the child in which the person has the full bundle of parental personal rights, including the right to physical possession of the child.

“Access” can be regarded as a form of temporary possession of the child with the powers granted to the access parent (or other person) being those necessary to ensure the well-being of the child. Access is not intended to be the mere right to visit a child. Access is intended to facilitate a meaningful, continuing, post-separation relationship between the child and access parent.

Access has been stated to be a right that belongs to the child, not the person seeking access. However, it is probably best understood as a mutual right.

If there has been no Court order or Agreement

In the absence of a Court order and subject to any agreement between the birth parents, guardianship of the child is held jointly by the mother and father so long as they live together. After separation, the birth parents remain joint guardians of the estate of the child but the birth parent who usually has care and control of the child is the sole guardian of the person of the child. If the father and mother were never married and never lived together so as to be considered joint guardians, then the mother is the sole guardian of the child.

Where there is no Court order or agreement and there is a conflicting claims to custody, the person who may exercise custody is the one with whom the child usually resides. In cases where the child resides with both parents, the parent who has the day to day care of the child may exercise custody.

Factors considered in making Canadian child custody and access awards:

In making a custody, guardianship or access order, the Court must look to the best interests of the child.

In making a custody order, the court takes into consideration the condition, means, needs and other circumstances of the child. Relevant issues are the health and emotional well-being of the child including any needs for care and treatment, the love and affection between the child and other persons, the education and training of the child, the capacity (including financial) of each prospective caregiver to look after the child, and, if appropriate, the views of the child (typically more important as the child gets older).

The Court will consider who looked after the child while the parents lived together, what each parent’s plan for the care of the child is following the separation, the degree of bonding between the child and the prospective caregiver, as well as the amount of time that the parent has to spend with the child.

A child’s race, culture or aboriginal heritage and the custodial parent’s willingness to respect and foster the child’s cultural identity is a relevant consideration.

In Canada, the conduct of one or both parents in not considered relevant to the determination of child custody unless the conduct is relevant to the ability of the person to parent a child. Personality, character, and stability will be taken into account. A person’s alcoholism, drug addiction, sexual misconduct, dishonesty, and lack of social responsibility may also be considered in determining the best interests of the child.

The willingness of each parent to allow or facilitate access to the child by the other parent is also an important factor. The court must seek to make an order that will facilitate the child having the maximum contact with each parent, subject to the child’s best interests.

The Court is typically slow to change the status quo where the children are happy and in a stable setting. However, if the long term best interests of the child require a change, the court may so order notwithstanding the immediate discomfort and emotional upset.

In making an access order, the Court will look at the same factors, but with the aim of making an order that facilitates a meaningful relationship between the access parent and the child in so far as it is in the best interests of the child.

Access has been denied in circumstances where the Court perceives risk to the child, the person has had insufficient contact with the child prior to the application, where there is a problem between the child and the parent, or even where there is a problem between the parents.

Where the Court has some concerns about granting access, a conditional order may be made rather than denying access all together. The conditions may be as simple as setting a time and place for access or as onerous as requiring a third party to supervise access.

Types of Orders
There are many types of custody orders that may be made. A court may order sole custody (with sole guardianship) sole custody with joint guardianship, joint custody, split custody (sole custody during the time the child resides with either parent), shared custody (equal time) or decline to make an order.

Access may be ordered with or without attached conditions (for example supervised access, or a specific schedule), and it is possible to get an access order when no order for custody has been made. It is also possible for third parties to obtain access orders.

Joint Custody and Shared Custody
In the past, Courts have been reluctant to order parents to share joint custody of a child unless there was some evidence or indication that the parents would be able to cooperate and communicate with one another and make decisions and resolve differences relating to the child with a minimum of conflict. Where it was apparent that to expect the parents to make joint decisions would only lead to further conflict, the court was likely to give sole custody to one of the parents.

In the early 1990′s joint Canada child custody awards increased as courts looked beyond bald statements that the parties could not cooperate and began to order joint custody even in cases where the parties did not always see eye to eye regarding the raising of their children. Judges have concluded that to require utopian cooperation between parents after separation is unrealistic, for if they saw eye to eye on everything they would still be married.

In the late 1990′s Lorne MacLean and other lawyers challenged gender stereotypes and began to seek shared custody: an expanded version of joint custody where the parties share equal decision making and EQUAL TIME with their children. Recent Court of Appeal authority has sanctioned a week on week off arrangement; we are moving towards a fairer distribution of parenting rights after separation. Recent psychological studies show children benefit most by low conflict and frequent and involved contact with both parents. Other studies show poor outcomes are predicted by the absence of a healthy father child relationship after marriage breakdown.

Sole Custody with Joint Guardianship
Where one parent is given sole custody, the court can order the parents to share joint guardianship of the child. This generally means that the parties are expected to consult with one another and keep one another informed with respect to the child, and in particular with respect to important social, educational and health-related events in the child’s life. The parent who does not have custody of the child is entitled to obtain information about the child directly from teachers, doctors and other persons looking after the child. However, the custodial parent retains the power to make decisions in the event of a disagreement between the parties.


Proposed Custody Changes
Federal Justice Minister tables modest changes to law of custody and access under Divorce Act and does away with terms custody and access leaving many disappointed.

Lorne MacLean has struggled for many years to champion a balanced approach to resolution of family law issues including support, property division and child custody and access. It seems that the heart wrenching issue of child custody will now be addressed from an improved, and in this writer’s opinion a more balanced, perspective. In the 1993 Supreme Court of Canada decision of Young, Lorne MacLean QC successfully argued the courts to define custody guardianship and access in a more child focused way as an obligation of divorcing parents and not as a right. More recent psychological studies have rejected the Primary caregiver model and have found children need two caring and involved parents to broaden a child’s experiences and upbringing. Remember children should not forfeit the love and guidance of two caring and concerned divorcing parents merely because a marriage or relationship has broken down.

Below is a summary of what changes were recommended by a select committee. The Federal Justice Minister has implemented only a portion of those recommendations and rejected any presumption in favour of shared custody citing that there is no evidence this presumption has worked in other jurisdictions. Men’s rights groups are very disappointed. The current system which awards sole custody 60 percent of the time to women, joint custody 30 percent of the time and provides custody to men less than 10 percent of the time will need to change to reflect recent psychological studies which show earlier studies in support of a primary caregiver were ill founded.

Canadian report recommends shared parenting

Recent rumours in 2012 indicate the conservative government is considering making changes that are similar to what our new Family Law Act will implement in 2013.

  • The terms ‘custody’ and ‘access’ to be replaced by ‘shared parenting’
  • Divorcing parents to be encouraged to develop ‘parenting plans’ to share the parenting functions and foster and maintain relationships with the wider family
  • Divorcing parents to be encouraged to attend mediation
  • Divorcing parents to be required to attend education programs to help them become aware of the post-separation reaction of parents and children, children’s developmental needs at different ages and the benefits of co-operative parenting after divorce
  • The common law ‘tender years doctrine’ be rejected as a guide to decision making about parenting.
  • Both divorcing parents of a child receive information and records in respect of the child’s development and social activities, such as school records, medical records and other relevant information. The obligation to provide such information should extend to schools, doctors, hospitals and other relevant information. The obligation to provide such information should extend to schools, doctors, hospitals and others generating such information or records, as well as to both parents, unless ordered otherwise by a court.

The report also puts forward a list of criteria to be used in determining the best interests of the child:

  • The relative strength, nature and stability of the relationship between the child and each person entitled to or claiming a parenting order in relation to the child;
  • The relative strength, nature and stability of the relationship between the child and other members of the child’s family who reside with the child, and persons involved in the care and upbringing of the child;
  • The views of the child, where such views can reasonably be ascertained;
  • The ability and willingness of each applicant to provide the child with guidance and education, the necessaries of life and any special needs of the child;
  • The child’s cultural ties and religious affiliation;
  • The importance and benefit to the child of shared parenting, ensuring both parents’ active involvement in his or her life after separation;
  • The importance of relationships between the child and the child’s siblings, grandparents and other extended family members;
  • The parenting plans proposed by the divorcing parents;
  • The ability of the child to adjust to the proposed parenting plans;
  • The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other parent;
  • Any proven history of family violence perpetrated by any party applying for a parenting order;
  • There shall be no preference in favour of either parent solely on the basis of that parent’s gender;
  • The willingness shown by each parent to attend the required education session; and
  • Any other factor considered by the court to be relevant to a particular shared parenting dispute.

FEDERAL GOVERNMENT IMPLEMENTS SUPPORTING FAMILIES AND DIVORCE 2009 INITIATIVE FOR BRITISH COLUMBIA AND CANADA FAMILY LAW

The Canadian federal government has implemented a new support program for families going through marriage breakdown and divorce click here for a free child custody interactive calendar.

Winning Your Child Custody Case