In BC, both the federal Divorce Act and the provincial Family Law Act regulate child custody and support. The provincial Family Law Act calls custody and access “parenting time,” and it also governs guardianship, which it calls “parental responsibilities.” In renaming traditional concepts, the provincial act is trying to encourage a collaborative approach to sharing family responsibilities after separation.
Married couples typically file a claim in court for divorce and custody under the Divorce Act and for parenting time and parental responsibilities under the Family Law Act. Unmarried parents, including common law spouses, claim under the Family Law Act for parenting time and parental responsibilities. A married couple will typically file a claim under the Family Law Act if they are not seeking a divorce, have not resided in BC for one year, or want to have their family matter handled in provincial court.
Both the federal and provincial legislation allow any person to claim rights of custody or parental responsibility, not just parents. In BC, the issues of guardianship and parenting time can be confusing, especially if an increasing number of parents, grandparents or step-parents seek contact rights.
Guardianship or Parental Responsibilities
“Guardianship” is the term used in the Divorce Act, and “parental responsibilities” is the term used in the Family Law Act. It means the responsibility for making major life decisions for a child, decisions about things such as education, religion, health care, and a child’s assets. Guardianship or parental responsibility can be a duty shared by both parents or handled by only one.
Access or Contact
“Access” in the Divorce Act refers to the time a child spends with the parent who is not the main caregiver. Access is the right of the child, and not the right of the parent. The law presumes that maximum contact is in the best interest of the child, but access can be as generous or restricted as the facts require.
Under the Family Law Act a person who is not a guardian of a child might seek the right to have “contact” with that child. People who have contact rights could be non-custodial parents, stepparents, grandparents, or other relatives.
Custody or Parenting Time
Custody is a term used in the federal Divorce Act but not in the provincial Family Law Act, where the concept of “parenting time” is used. It means the responsibility to care for a child, including day-to-day decision making. Typically parents share joint custody, or one parent alone might have custody, depending on what is in the child’s best interests and what the court orders.
Below is a brief summary of the types of custody orders under the Divorce Act:
1. Sole Custody:
Sole custody provides one parent with the full bundle of rights and responsibilities with respect to a child. The sole custodial parent will have the ultimate decision-making authority for the child’s education, health and general well-being.
The non-custodial parent may have access rights but no decision-making authority.
2. Sole Custody and Joint Guardianship:
A sole custody and joint guardianship order will reserve part of a bundle of rights for the custodial and non-custodial parent to share. The advantages of a non-custodial parent being a joint guardian is as follows:
if one guardian dies, the other retains guardianship;
- a joint guardian has the right to be consulted on issues of the child’s health, welfare, and education;
- a joint guardian has the right to ask the court for directions if the guardians cannot agree.
3. Joint Custody
A joint custody order anticipates that both parents will participate in the decision-making process for education, health, and well-being of the child. Joint custody does not require alternating periods of residence with each parent.
Courts now encourage joint custody and joint guardianship except in the most strained of circumstances.
4. Split Custody
If there are two or more children, the court might make an order splitting them apart so that one parent has custody or one (or more) of the children while the other parent has custody of the other children. Splitting children apart like this is an exceptional order that will only be granted where the parents cannot communicate to arrange any sharing of custody and it is in the interests of the children.
Creating Custody or Parenting Arrangements
Custody or parenting arrangements can be established without going to court. The parents may write out their separate and joint responsibilities in a parenting plan. Such an agreement can be filed with the court and it can be enforceable.