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Lorne MacLean BC Child Custody Lawyer Discusses BC Child Custody Changes

Probably the most difficult issue BC separated parents must face is how to settle BC child custody, BC child Guardianship and BC child access. Some have argued for a presumption of joint and shared BC child custody as the new default position. I have argued we divide property equally, we try to equalize standards of living by payment of support but if someone asks to share custody after separation it is frequently dismissed as unworkable. I respond that children do not forfeit the love and guidance of two caring and concerned parents merely because of marriage breakdown. The BC government’s Family Relations Act Reform White Paper contains important new terminology and strategies to deal with children in separated families. I had the honour of arguing Canada’s key child custody and guardianship case in the Supreme Court of Canada in Young v. Young and one of my arguments was that parents do not have rights- rather they have responsibilities. I am heartened to see this concept has been adopted by the BC government.

The proposed Act provides a list of “parental responsibilities” that guardians must exercise in the best interests of their children. This list is modelled largely on section 18(6) of Alberta’s Family Law Act.

Upon separation, the starting point is that each guardian may exercise all of the parental responsibilities. Parental responsibilities may be allocated between guardians by agreement or court order, but if there is no allocation, each guardian retains responsibility for all aspects of the care of their children
This approach is intended to encourage greater co-operation by giving guardians a clear idea of what their responsibilities are and allowing parenting arrangements to be tailored to each family’s circumstances. However, where co-operation is not possible or appropriate, the option of asking a judge to make an order allocating parental responsibilities in the child’s best interests is available. If there is an ongoing risk of family violence, a parent may seek a protection order. See Chapter 4: Children’s Best Interests and Chapter 12: Protection Orders for further details.
One of the parental responsibilities that may be allocated is “to make day-to-day decisions affecting the child, including having the day-to-day care and control of the child and supervising the child’s daily activities.” A guardian’s “parenting time” is the time during which he or she exercises this responsibility.
A non-guardian’s time with a child (“contact”) may be in the form of visits or any other method of communication including oral or written communication. Since only guardians have parental responsibilities, there are no parental responsibilities associated with contact. If a written agreement respecting contact is to be made, all guardians who have the parental responsibility to decide with whom the child is to associate must sign the agreement. Anyone may apply to a court for an order for contact and the court may include any terms in the order that it considers appropriate.

Parental responsibilities

46 (1) Subject to an agreement or court order that allocates parental responsibilities, a guardian
may exercise the following parental responsibilities with respect to the child:
(a) to make day-to-day decisions affecting the child, including having the day-to-day care and control of the child and supervising the child’s daily activities;
(b) to decide the child’s place of residence and to change the child’s place of residence;
(c) to make decisions about the child’s education, including the nature, extent and place of the education and the child’s participation in extracurricular school activities;
(d) to make decisions regarding the child’s cultural, linguistic, religious and spiritual upbringing and heritage;
(e) to decide with whom the child is to live and with whom the child is to associate;
(f) to decide whether the child should work and, if so, the nature and extent of the work, for whom the work is to be done and other related matters;
(g) to consent to medical, dental and other health-related treatment for the child subject to section 17 of the Infants Act;
(h) to grant or refuse consent if consent of a parent or guardian is required by law;
(i) to receive and respond to any notice that a parent or guardian is entitled or required by law to receive;
(j) subject to any applicable legislation, to commence, defend, compromise or settle legal proceedings relating to the child and to compromise or settle proceedings taken against the child;
White Paper on Family Relations Act Reform 2010
(k) subject to any applicable provincial legislation, to identify, advance and protect the legal and financial interest of the child not referred to in paragraph (j);
(l) to authorize a person to exercise, on a temporary basis, the guardian’s parental responsibilities, other than those referred to in subsections (b), (d), (j) and (k) on behalf of the guardian if the guardian is temporarily unable to exercise those responsibilities;
(m) to receive from third parties health, education or other information that may significantly affect the child;
(n) to exercise any other responsibilities reasonably necessary to nurture the child’s physical, psychological and emotional development and to guide the child toward independent adulthood.
(2) A guardian of a child must exercise his or her parental responsibilities in the best interests of the child.

If you have a difficult child custody case call us toll free at 1-877-602-9900.