Parenting Issues

Access

Access and Custody are concepts that are used in the Divorce Act (Canada), a law that was passed by the Federal Government. The “best interests” of the child(ren) is the principal factor the courts consider when making orders for access and custody.

Access relates to a parent’s time with their child. For someone who has sole custody, the other parent is often awarded access to the child on a set schedule, with the off days being with the custodial parent. In cases of Joint and Shared Custody arrangements, the access schedules can be more flexible, depending on the circumstances. However, in high conflict matters, a set schedule is widely used. Whatever the case may be, access is awarded at such times the court deems appropriate in the child(ren)’s best interests.

Applications for custody & access orders are commenced and sought in the Supreme Court.

Custody

Custody relates to where your child(ren) resides and the allocation of rights and responsibilities to make decisions about your child(ren). There are 4 categories of custody:

  • Sole – the children live primarily with this parent, who also has all of the decision making rights and responsibilities
  • Joint – the children live with both parents on a somewhat equal basis, and both parents have equal decision making rights and responsibilities
  • Shared – the children live with one parent at least 40% of the time, and both parents  have shared rights and responsibilities
  • Split – where the children are split up and some residing at one home and others at the other parent’s home.

Applications for custody & access orders are commenced and sought in the Supreme Court.

Guardianship

Guardianship is the term used by our provincial statute, the Family Law Act, to describe who is responsible for the care, upbringing, and estate of the child(ren).  Whether a child’s parents are together or separated, parents are deemed guardians of their child(ren).  To change guardianship status, you must apply to the court for an order or sign a written agreement.  Under a Will, guardianship can be allocated to someone other than a parent.  Because guardianship is covered under a provincial statute, you can apply to change guardianship in either the Provincial Courts or the Supreme Courts.  Family members, such as grandparents, siblings, step-parents, as well as non-family members can apply to the court for guardianship if they deem the current guardians to be unfit or a danger to the safety and well being of the children.

Parental Responsibilities

In the Family Law Act, these responsibilities are set out so it is clear for those parents and guardians involved in a family law dispute what the courts expect of them.  These responsibilities can be shared or allocated separately to guardians.  Only guardians can be given parental responsibilities.

Parenting Time/Contact

Parenting Time is the term used by our provincial statute, the Family Law Act, to describe the time each parent spends with their children [known as “access” under the Divorce Act (Canada)].  Parenting time is only awarded to guardians and during this time the guardian can make the day-to-day decisions about the child and is responsible for the care and supervision of the child.  Parenting time is allocated via a “parenting schedule”, which sets out the days and length of each parent’s “parenting time”.  Where guardians cannot agree on a parenting schedule that is in the best interests of the child(ren), they can utilize the assistance of a Parenting Coordinator or they can apply to either level of court (Provincial or Supreme) for an order setting out a parenting schedule.  The best interests of the child(ren) will be the only factor considered when determining a schedule.

Contact is the term used by our provincial statute, the Family Law Act, to describe the time any non-guardian spend with children.  A non-guardian can apply to the courts for contact with a child and the courts will assess whether or not it is in the child(ren)’s best interests to have contact.

Adoption

Adoption is governed by our provincial statute, the Adoption Act.  Anyone who lives in British Columbia can file an application for adoption in the Supreme Court of BC.  There are four types of adoptions:

1. through the Ministry of Children and Family Development (MCFD)
2. by an adoption agency
3. by agreement between the birth parent and a non-family member
4. by a relative or step-parent

In any adoption, the courts will consider only the best interests of the child(ren) while preserving the child’s cultural identity.

 

Resources