Under the federal Divorce Act, which applies to married spouses, custody relates to decisions respecting the day to day decision making with respect to a child like where they will live, who they will see, when they go to school, when they will see their doctor, what they will wear, what time they will go to bed relate to custody. The time a non-custodial parent sees a child is called access. As a result of the federal government having authority over marriage and divorce, they can make laws dealing with related issues like custody, access and support of married spouses and children.
In British Columbia the Family Law Act deals with these issues as well because the province has authority over property and legal rights between parties. Under the Family Law Act decision making issues about children are called parenting responsibilities which comprise the term Guardianship and access related issues under the Family Law Act are called Parenting Time. The Family Law Act deals with married and unmarried parties and the legal status of children before an order is made by a court.
However for married people, if a Divorce Act order deals with custody or support it will have priority over an Order under the Family Law Act, dealing with the same issue. It is important to note custody and guardianship therefore do not relate to how much time a parent spends with a child just how decisions are made and the role a parent has in making those decisions.
Prior to any court making an Order, if both parents have lived with a child since the child’s birth they will share joint guardianship of that child under the Family Law Act whether or not they are unmarried or married. This means that they share equally entitlements and responsibilities towards that child regarding all parenting issues and responsibilities. This is important because where parties share joint guardianship (or joint custody under the Divorce Act (Canada) they must agree on how the child is to be cared for and they cannot make a binding decision with respect to a child without the other parents consent.
If a parent has never lived with a child and the parties were not married, the parent who lived with the child only has guardianship of the child pursuant to the Family Law Act unless a court orders otherwise or the two parents agree otherwise.
Sole custody orders under the Divorce Act and sole guardianship orders under the Family Law Act are orders made whereby one parent gets to make all the decisions with respect to a child. A sole custodial/guardianship parent can make all the decisions without consultation with the other parent unless the guardianship order specifies otherwise. This creates a difficult situation where one parent can be excluded from major decisions affecting their child. This is very often seen as not satisfactory from the point of view of the child and courts are becoming more reluctant to order sole custody or sole guardianship.
However, for joint custody and joint guardianship to work both parents must be able to effectively communicate. Sometimes this is not possible. In order to maintain parental involvement for the child even in situations of bad communication, it is quite common for courts to impose a hybrid joint guardianship Order with the requirement that the parties as joint guardians of the child discuss major issues regarding the child and preserving the right of the non-custodial parent to interact and receive information from third parties (teachers, doctors, day care workers, etc.) about the child directly while leaving any dispute breaking authority with the parent who has primary responsibility for the day to day decision making of the child.
Under the Divorce Act if a parent obtains access but does not have custody they are entitled to receive this third party information directly from the third party without the consent of the custodial parent.
As is obvious from a practical perspective due to time constraints in running two households after separation usually the child lives most of the time with one parent. If parties share joint custody under the Divorce Act (Canada) this parent is said to have primary residence. In sole custody situations this would be the custodial parent. The parent who does not have primary residence can apply and usually does receive access to the child. This can be done by agreement or court Order. Access of course being the time they spend with the child and communicate with the child.
Under the Divorce Act a parent or stepparent can apply for custody or access to a child of the marriage of the parties. Under the Family Law Act any person can apply for contact to a child and to become a guardian of a child. From a practical point of view “any person” is limited to parents, stepparents and close family members. Under the Family Law Act only a guardian can exercise parental decision making regarding a child. Parents can agree that other parents can become guardians of a child in an agreement signed by two witnesses but a non-parent can only be appointed by court order. Also under the Family Law Act there are specific provisions which require lawyers and the court to promote settlement. The parties are encouraged to set out their level of involvement of their children in a plan of guardianship known as a parenting plan.
The concept of shared parenting is one wherein the parents split the care of the child into blocks of time usually fairly equally and share joint custody and guardianship. In this model they both remain equal partners in raising the child. This sort of arrangement can be challenging but beneficial for the child because both parents maintain an active role in the day-to-day life of the child. For this situation to work the parents must be able to communicate very effectively, live in close proximity so they can easily transport the child to school and between households and both have a work schedule computable with a large time commitment for the child. The child as well must be able to cope physically and emotionally with having two primary homes. These sorts of arrangements are becoming more frequent and should be given consideration when both parents have been very active in the lives of their children.
Contact us for a no-charge 20 minute consultation*:
Dubas and Company
email: jdubas@divorcebc.net
605 – 938 Howe Street
Vancouver, BC V6Z 1N9
Tel: 604.697.9107
Fax: 604.697.9108
*20-minute consultations must be in-person at our law offices, if at all possible.