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This chapter provides an overview of custody, guardianship and access, and looks at traditional and developing concepts in the law about children. It also discusses the rights and interests that grandparents and other non-parents might have with respect to someone else's children. Other legal issues relating to children, such as leaving home and naming children, are discussed in the Q&A chapter and in the section Other Family Law Issues. Introduction There are two laws that deal with issues concerning the care and control of children, the federal Divorce Act and the provincial Family Relations Act. Both laws allow parents and other people to apply for orders about where the children will live and how much time each person will have with the children. Whenever the court is asked to make a decision about issues like these, the court's primary concern is the children and the sort of arrangement that will be in their best interests. Most of the chapters in this section talk about the court makes these decisions and the laws that apply to different parents in different situations. The next chapter, Parenting After Separation, talks about some very important issues that don't involve the courts and the legislation, but are equally important: how to protect children from the conflict between their parents, examples of different parenting plans, and some of the parenting resources that are available to separating and separated parents. When parents separate, there is a lot more at stake than just where the children are going to be living tomorrow. Parents have an obligation to think in the long term, years down the road. How is their conflict going to affect their children? How can the parents both maintain a meaningful role in their children's lives? How will the children adapt to the separation of their parents? Perhaps most importantly, how can the children be best helped to grow and mature into adults, with families of their own? There's a lot more to dealing with the care and control of children than the Divorce Act or the Family Relations Act provide for. The romantic relationship between the parents may be over, but they'll always be parents no matter the nature of their relationship with each other. Parents owe a duty to their children to overcome their differences and always put their children first, no matter how hard it is to cope with the legal issues that arise from their separation. The Divorce Act and the Family Relations Act For married couples, the law regarding custody and access is governed by the federal Divorce Act and the provincial Family Relations Act. For unmarried parents, including common-law couples, the law regarding custody, guardianship and access is governed only by the Family Relations Act. Married couples typically seek relief under both the federal and the provincial legislation. Typically, married couples make a claim under only the Family Relations Act when:
Note that guardianship is not dealt with in the Divorce Act. In proceedings under that act, guardianship is considered to be an aspect of custody. Other than this one exception, there really aren't any truly significant differences between the Divorce Act and the Family Relations Act in terms of the law relating to custody and access. The Best Interests of the Children Whenever the court considers issues involving children, its first and foremost concern is the best interests of the children, not whatever the particular wishes of a parent might be, no matter how well-intentioned those wishes might be. In any application concerning children, you must show that what you want is in your child's best interests. Section 16 of the Divorce Act is about custody and access. Section 16(8) says this: 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. Section 24 of the Family Relations Act is titled "Best interests of child are paramount" and goes into more detail than the Divorce Act about what children's "best interests" means: When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances: (a) the health and emotional well being of the child including any special needs for care and treatment;(b) if appropriate, the views of the child;(c) the love, affection and similar ties that exist between the child and other persons;(d) education and training for the child;(e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately. In making decision about custody, guardianship and access, the court will take into account a whole range of factors, including some of the following:
You should bear in mind these quotes from Mr. Justice Spencer in Tyabji v. Sandana, a 1994 decision of the British Columbia Supreme Court: "Custody is not awarded in any sense to punish the parent who is deprived of it. There is no contest between parents to see who most deserves the children nor who was the more responsible for the break-up of the family unit." "Custody is a placement of the children with the person who, in the court's judgment, presents that prospect of care and upbringing which is in the best interests of the children." You should also bear in mind a decision attributed to King Solomon. Solomon, who was dealing with parents fighting over who would have custody of a child, was so angered by the parents' bickering and finger-pointing that he ordered that the child be cut in half so they could both have custody. Separation Once a couple separates physically, meaning when one parent actually leaves the house, the parent with whom the children stay for most of the time is considered to have "de facto" custody of the children, in other words, custody as a matter of fact, rather than custody as a result of a decision of the court or a separation agreement. Both parents will generally remain joint guardians of the children, until a court or a separation agreement says otherwise. De facto custody doesn't mean much, however, as it isn't something that the police will recognize or understand, and doesn't create a legal entitlement to custody, just a presumption which helps when the other parent has no involvement in the child's life at all. Back to the top of this chapter. Traditional and Developing Concepts It is safe to say that the old-fashioned legal ideas about the care and control of children are not going to change in the blink of an eye. However, both the courts and the governments are moving towards new ways of looking at these ideas in an effort to avoid some of the stereotypes and the win/lose mentality sometimes associated with traditional concepts. It often happens that a parent who isn't awarded custody feels that he or she has somehow "lost." Sometimes, this parent feels that his or her parenting role has been marginalized and that he or she is somehow the lesser parent of the two, or that his or her role is being trivialized as an "access parent." One of these new ideas is to use the phrase "primary residence" to describe the place where the children live most often, without necessarily making any order that one parent have sole custody to the exclusion of the other parent. Orders about who will have access can share the stigmatizing effect of orders for sole custody. Some judges are moving towards describing the non-custodial parent's "access" as that parent's "time with the children" or as "the children's time with" that parent, and describing the arrangements that are made for custody, guardianship and access as a "parenting plan." The common goal here is to reduce the preconceptions that:
Custody Custody can be awarded to one person, called "sole custody," or it can be shared between two parents, usually called "joint custody." Custody is a difficult and fuzzy concept to define because it shares a lot of its meaning with guardianship and because whether custody is joint or not has nothing to do with how much the child is with each parent. Essentially, custody sort of means having the day-to-day care and control of a child. The chapter Children > Custody offers a better explanation of custody and its distinction from guardianship. Sole Custody A parent who has "sole custody" has the household in which the child lives for the majority of the time. This parent may also have sole guardianship or the child, or the parents can be joint guardians of the child. If a parent has sole custody of a child because of an order or an agreement and the order or agreement doesn't say anything about guardianship, that parent will be assumed to also have sole guardianship of the child. Joint Custody When parents have joint custody, the child's home is theoretically split between the two parents, although the child may spend more time at the home of one parent than the other, sometimes a lot more time. Parents can share joint custody in situations where one of the parents only sees the child on the weekends and even when the parents live in different provinces. There is no connection between joint custody and the amount of time each parent has with the child. Parents who have joint custody of a child will also have joint guardianship of the child. Split Custody Parents have "split" custody of their children when one or more children live with each parent for most of the time. The parents can each have sole or joint custody of some or all of the children. This sort of custodial arrangement is rarely imposed because it means that siblings will be separated from each other. Split custody will only be ordered when there is proof positive that it is in the best interests of the children to live apart from each other, which might be the case when the children don't get along with each other and are constantly fighting, or where it can be proved that one or more of the children will be better off with the other parent. This sort of custodial arrangement will have an impact on the amount of child support each parent pays to the other, see the Child Support section of this website for more information. Shared Custody This is a kind of joint custody in which the child lives more or less equally with both parents, spending an almost equal amount of time in each of the parents' homes. A typical situation of shared custody is where one parent has one week with the child and the other parent has the child for the following week. This is also known as a "week-on/week-off" arrangement. The amount of conscutive days each parent has with the child can be for more than one week, or the week can be split up, for example into a rotating two week pattern where the first week is split four/three and the second is split three/four. Other arrangements are certainly possible, but they will usually be a lot more complicated and call for much more frequent exchanges of the child between his or her parents' homes. Parents with shared custody will also have joint guardianship of their children. This sort of custodial arrangement will have an impact on the amount of child support each parent pays to the other, see the Child Support section of this website for more information. Primary Residence A child's "primary residence" has nothing to do with custody, but may become an issue when the parents have joint custody of their children and a certain kind of joint guardianship of the children. In cases like that, it is sometimes necessary to specify who will have the child's primary residence, as under that kind of joint guardianship the parent with primary residence has a certain kind of decision-making authority. In general, the parent who has the child for most of the time will be given the child's primary residence. In cases of shared custody, the child's primary residence can be given to one parent, or it can switch from week to week according to where the child is living. Primary residence is not a term you will find in the Family Relations Act or in the Divorce Act. It is a creation of the courts. Birdnesting Like the concept of primary residence, birdnesting is not a term drawn from either the Family Relations Act or the Divorce Act. Birdnesting refers to a kind of joint custody where the children live full-time in the family home with the parents moving in and out. In a usual situation of week-on/week-off access, or another kind of equal sharing of the children's time, the children go to live with one parent for a period of time, then go to live with the other parent for an equal period of time. When parents birdnest, the children remain in the same home and the parents do the moving. The underlying theory here is that it is disruptive for children to switch homes every week and that it is too costly to make sure there's a full set of clothing, toys, books and whatnot in both houses. Birdnesting lets the kids stay in a single home, usually the family home that they've grown up in. Of course, the cost saved by avoiding duplication of the children's clothes and books is offset by the need to maintain three homes: the family home, and a home for each of the parents. Guardianship Being a child's guardian means being the guardian of the child's estate and being the guardian of the child's person. Guardianship of a child's estate gives the guardian the right to deal with the child's property. Guardians are under an obligation to deal with the child's property only for the benefit of the child, and cannot use the child's property for their own personal benefit. Guardianship of a child's person gives the guardian the right to care for the child, the right to make important medical, educational, therapeutic and religious decisions on behalf of the child, and the right to give instructions to and receive information from the teachers, doctors, dentists, and other professionals involved in the child's life. In a nutshell, guardianship of the person of a child is the right to direct and contribute to the child's upbringing. Parents are not the only people who can be a child's guardians. Foster parents can be legal guardians, and when the Ministry for Children and Families places a child in care, the person with whom the child is placed will be the child's guardian. Parents can also designate a guardian in their Will, so that the child will be cared for by that guardian if the parents die before the child becomes an adult. Sole Guardianship A parent with sole guardianship of a child is the only person able and authorized to make these important decisions about the child's life. Unless the other parent has special permission, he or she is not entitled to make decisions about the child's religious education, medical treatment, schooling, or to obtain any information about the child from his or her teachers and doctors. A parent with sole guardianship of a child will also have sole custody of the child. Joint Guardianship In a joint guardianship arrangement, both parents have the right to participate in the child's upbringing, education, religious instruction, medical treatment and so forth. In such a situation, the parents are expected to be able to communicate with each other well enough to co-operatively make these decisions, and to work together for the sake of their child. The terms of how guardianship issues will be handled can be vague or they can be very specific. Vague terms ususally only say "the parents will have joint guardianship of the child." Specified terms usually follow guidelines first set out by Mr. Justice Joyce that are usually called the "Joyce clauses" or the "Joyce model" of joint guardianship. Another model of joint guardianship was created by Master Horn, and is called the "Horn model." Both models describe the rights and obligations both parents have when they share joint guardianship. The Joyce model is fairly detailed and require the parents to consult with one another on all important decisions affecting the child, to make their best efforts to work together to reach a solution which is in the best interests of the child, and so forth. This is where the concept of "primary residence" comes into play, as the parent who has the child's primary residence or "primary care" usually has the right to make a final decision where the parents are unable to come to an agreement. The parent who doesn't have primary residence usually has the right to apply to court for a review of that decision. The Horn model is more about the parents' rights to access information about the child, usually about the child's schooling, health and extracurricular activities. Under the Horn model, neither parent has the ultimate say and parents must either go to court, go to mediation or go to a counsellor to make the decision. Parents can have joint guardianship regardless of whether custody is held by one parent alone or is jointly held by both parents together. Parallel Parenting This is a kind of joint guardianship suitable in high-conflict situations where each of the parents are good parents and the children would do well with either of them. A recent 2004 decision of the Provincial Court, J.R. v. S.H.C., discussed the concept of parallel parenting at length. The court summarized the concept as follows:
To minimize disputes, parents who are parallel parenting are assigned specific areas of the children's lives that they will have authority over. For example, one parent might be responsible for educational and religious issues while the other is responsible for sports and music lessons. Parents who have a parallel parenting arrangement will have joint custody of their children. Parallel parenting is not a term you will find in the Family Relations Act or in the Divorce Act. It too is a creation of the courts. Access This term describes the time that each parent has with the child. Usually, access means the time that the parent who has the child for the least amount of time has with the child. Access is a basic parental right, and a parent is presumed to have the right to spend a regular, scheduled amount of time with his or her child. Access will only be withheld when a parent poses a hazard to the child. The amount of access a parent has depends entirely on the particular circumstances of the family, and a parent's access rights can be described on vague terms or with extreme detail. Vague terms usually say something to the effect of "so-and-so shall have liberal and generous access to the child." Detailed terms can include provision for specific drop-off and pick-up times, the sharing of driving, halves of birthdays, alternating holidays, extra time when there is a holiday Monday, Fathers' Day and Mothers' Day, the sharing of religious holidays and so forth. How detailed the terms of access need to be depend entirely on the circumstances of the parents, the level of commitment each parent has to be on time for access visits, and how flexible the parents are prepared to be with one another. It is very important to understand that a parent's access rights to a child are entirely different from that parent's obligation to pay child support. Child support is not a fee paid to see one's child, nor is it it a fee charged in exchange for access. It is never appropriate to withhold access because the parent missed a child support payment, nor is it ever appropriate to stop paying child support because access has been withheld. The courts will not look kindly on parents who have engaged in this sort of conduct. Supervised Access Supervised access is a kind of access in which a parent's time with a child is monitored or supervised by another adult, often a friend, a family member or, in rare cases, a professional access supervisor. Supervised access can be extremely difficult for a parent, and is reserved for situations where there are grave concerns about a parent's fitness to see his or her children. There must, in general, be some legitimate hazard to the child for a parent's time with his or her child to be supervised. A history of mental instability, physical abuse, sexual abuse, substance abuse, or past attempts to abduct the children or alienate the child from the other parent are among the factors which suggest that access should only be allowed on the condition that it is supervised. Conditional Access Sometimes a court will order that a parent's access to his or her child depend on that parent's fulfillment of a condition or conditions. Normally, this is only required when there are concerns about a parent's behaviour when in the company of his or her children. Such "conditions" of access might include a requirement that: the parent not smoke in the presence of the children; the parent not drive with the children; or, the parent not drink alcohol before and during his or her time with the children. Pretty much any legitimate concern can be made into a condition of a parent's access. If the parent who is subject to the condition breaches that condition, the other parent will be justified in withholding the child from him or her on a scheduled access visit. Parenting Time "Parenting time" is becoming a popular alternative to the term "access." An order or agreement might, for example, say that "Sally shall have parenting time with the child from Friday evening to Sunday evening on every second weekend," rather than saying "Sally shall have access from Friday evening to Sunday evening on every second weekend." Another alternative is to refer to access as a parent's "time with the child." The point of using this language is to avoid the negative associations with the word "access." There is less of a stigma attached to "parenting time" than there is to "access," and the use of the phrase "parenting time" also helps to recognize the importance of both parents to the child's life. Back to the top of this chapter. Grandparents and Other Non-Parents People other than a child's biological parents can also have a legal interest in a child. Typically, these people are a child's blood relatives — grandparents, aunts, uncles and so forth — although there's no reason at all why someone else, like an unrelated long-term caregiver, couldn't also have an interest in a child. Most often, however, it's grandparents who feel the need to seek a legal role in their grandchildren's lives. For that reason, this segment is primarily directed to grandparents, although it applies equally to other non-parents. Grandparents and other non-parents normally become involved in law suits dealing with children, as parties in their own right, in only a few situations:
Their concerns are usually about:
No matter how valid or legitimate a grandparent's or other non-parent's concerns might be, the court will place a great deal of weight on the wishes of the parents. In a 2003 case of the British Columbia Supreme Court, M.(D.W.) v. M.(J.S.), the court said that while it must give "paramount consideration" to the best interests of the child, "significant deference must be accorded to the custodial parent and that parent's ability to determine the child's best interests." Legislation Two laws might apply to non-parents seeking custody or access to children. Where the children's parents are already in court about the children, that will be either the Divorce Act (especially if the parents are or were married) or the Family Relations Act. If the parents are not involved in court proceedings between each other, it will be the Family Relations Act. Each law has different rules about how and when non-parents can apply in court, and it's important to understand which law might be applicable. The Divorce Act According to s. 16(1) of the federal Divorce Act, the court can make an order for access and custody on the application of a parent or "any other person." Section 16(3), however, says that an "other person" must get the court's permission before bringing on such an application. Since we're talking about the Divorce Act, litigation must have already started between married spouses or formerly married spouses before the grandparents can step in; there must be an existing law suit in which the application is brought. A grandparent cannot start an action under the Divorce Act, since the act only applies to disputes between spouses. Grandparents must ask to be "joined" to an existing action. If there is no action between the parents under the Divorce Act, grandparents can leap into the fray by applying under the Family Relations Act, whether the parents are fighting about things in court or not. The Family Relations Act The provincial Family Relations Act speaks of "persons" who may exercise custody, guardianship or access, not of "parents" or "spouses." This means that anyone can seeks custody, guardianship and access to a child, not just the child's biological parents. In fact, s. 35(1.1) of the act expressly states that "persons" includes "parents, grandparents, other relatives of the child and persons who are not relatives of the child." The Family Relations Act is a lot more permissive than the Divorce Act, and non-parents do not need to get the court's permission before bringing an application. The same principles apply to the rules about child support. Those sections also speak of "persons" rather than "parents" or "spouses." A person who has custody of a child can apply for child support, regardless of whether the person making the application is a parent or not. Actions for custody, guardianship, access and child support can be brought by grandparents and other non-parents under the Family Relations Act in either the Supreme Court or the Provincial (Family) Court. It is not necessary to wait until the parents have started proceedings themselves before the application is made. When a child's parents are involved in a family law proceeding between themselves, s. 18(2) of the Family Relations Act allows grandparents and other non-parents to apply to court for leave to "intervene" in the matter. People who are granted standing as intervenors in a proceeding have the right to present argument to the court, to say why the court should or shouldn't make a particular order. In most cases, intervenors aren't asking for an order for themselves, they're just arguing a particular point of a view about what the court should do in the case. Custody There is a strong presumption in favour of the natural or adoptive parents of the children. The court will generally be inclined to allow the children to remain with their parent or parents unless a strong case can be shown that the parents are neglectful and that the children are suffering in their care. To quote from a 1992 case of the British Columbia Supreme Court, J.R. v. D.W.: "Parental claims will not lightly be set aside except in clear cases where the welfare of the child cannot otherwise be achieved." The Supreme Court of Canada emphasized the children's best interests a bit more strongly in Racine v. Woods, a case from 1983: "The law no longer treats children as the property of those who gave them birth but focuses on what is in their best interests." Nevertheless, grandparents and other non-parents seeking custody will face a difficult challenge, especially where both parents are still in the picture, even if they have been actively involved in caring for the children themselves. Since actual, concrete harm must usually be shown before grandparents are awarded custody, it can be critical to gather as much documentary evidence as possible. Some helpful sources include: police records; the records of social workers involved with the children; files from the Ministry for Children and Families; and, a psychologist's report. Factors that the courts have taken into consideration in awarding custody to a non-parent have included:
Grandparents and other non-parents should not be too discouraged by the generally pessimistic tone of this segment. There are quite a few cases in which grandparents have been awarded custody of their grandchildren; it is possible to succeed on a custody application. Remember that the chances of success depend wholly on the circumstances of each case. Access There is a big difference between seeking custody and seeking access. In custody cases, the courts are concerned with the fundamental living arrangements and health and welfare of the children. In access cases, the parent usually has custody, and the court is being asked to challenge the parent's right to control his or her child's upbringing. As a result, the court will place an even greater emphasis on the discretion and judgment of the parent. Grandparents and other non-parents do not have a presumptive right of access to children under either the Divorce Act or the Family Relations Act, but they can ask the court to make an order giving them access to their grandchildren. The 1993 Supreme Court of British Colmbia case of Chapman v. Chapman set out the general rules governing applications for access by non-parents:
Non-parents must usually demonstrate some positive benefit to the child before access will be allowed, and that the child's time with them is in the child's best interests. Normally, grandparents and other non-parents are allowed only the amount of access that the parents will agree to. Where both parents are still in the picture, the court will usually require that grandparental access occur during the time that their child has the grandchild. In otherwords, maternal grandparents will usually have access, if the court makes the order at all, during the mother's time with the child. Where only one parent is in the picture, the court will usually determine what access the grandparents ought to have independently of the interests of the grandparent's child. As with custody applications, grandparents and other non-parents should not be discouraged by the generally pessimistic tone of this segment. There are numerous cases in which grandparents have been awarded time with their grandchildren; it is possible to succeed on an access application. Financial Support When a non-parent obtains custody of a child, or even just the child's primary residence without an express order regarding custody, that person can apply for child support against the biological parents of the child. The same rules will apply to a non-parent's application for child support as apply to a parent's application, except that grandparents and other non-parents can only apply for child support under the Family Relations Act, they cannot apply under the Divorce Act. See the section Child Support for more information on this topic generally. Grandparents are also entitled to ask for financial support from the provincial government to defray the cost of caring for any grandchildren in their care. The province of British Columbia pays grandparents looking after their grandchildren at the same rate as foster parents. It's not a princely sum, but it's better than a kick in the teeth. Back to the top of this chapter. Site Navigation
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