In BC, both the federal Divorce Act and the provincial Family Relations Act regulate child custody, access and child support. The Family Relations Act governs guardianship. Both the federal and provincial legislation allow any person to apply for a custody and access order, not just parents.
Married couples typically make a claim for custody and access under the Divorce Act and for custody, access and guardianship under the Family Relations Act. Unmarried parents, including common law spouses, make a claim under the Family Relations Act for custody access and guardianship. A married couple will typically make a claim under the Family Relations Act in circumstances where 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.
In BC, the issues of guardianship and custody are confusing, especially with the increasing number of parents that share joint custody and guardianship.
“Guardianship” is the responsibility for making major life decisions about things such as education, religion, health care, and how to manage anything a child may own such as money or property. Unless otherwise stated, in an order or separation agreement, “guardian” means being the guardian of both the child’s estate and person. Therefore, a guardian is empowered to make decisions over a child’s property, where the child lives, and how the child is cared for. Like custody, guardianship can be handled by one parent or shared by both.
Access refers to the time that the parent with the least amount of time with the child spends with the child. 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. The test the courts apply is the “best interest of the child”, and therefore access can be as generous or restricted as the facts require.
Custody arises for minor children when the court must decide who a child should live with having regard to the child’s best interests. Below is a brief summary of the types of custody orders:
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.
Although as a matter of law there is no presumption in favor of joint guardianship or joint custody over sole guardianship or sole custody there has been a trend over the last few years to encourage joint custody and joint guardianship except for the most strained of circumstances.
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. Under a joint custody arrangement the parents continue to share the same duties, rights and responsibilities except that of everyday parenting which go with the physical care and control of the child.
4. Split Custody
A court may make an order granting custody during the time in which the child is with that parent. This is an exceptional order that will be granting where parents are incapable of communicating and there is little prospect for the parental communication to improve. Here the child has a bond with both parents and the interests of the child require that considerable time is spent with each parent.
How are custody, guardianship, and access arrangements determined?
Custody, guardian, and access arrangements can be established in a number of ways. The parents may determine child and access by a written agreement. Although a written agreement will be considered by a court, the court is not bound by the written agreement and a court order will ultimately prevail over a written agreement. The Family Relations Act provides that where there is no written agreement or court order, the person with whom the child usually resides with may exercise custody.
When the courts address questions of custody and access of children, the best interests of the child is paramount. The courts will consider a range of factors, which may include:
which parent has been the primary caregiver;
- degree of bonding between child and parent or other caregiver;
- child’s need for stability and security: preservation of status quo;
- conduct of the claimants;
- how much each parent will work to encourage time spent with the other parent;
- financial circumstances;
- preference of the child, however the weight given will largely depend on the age of the child;
- separating siblings; and
- time available to spend with children
Primary residence is a creation of the courts and not found in either the federal or provincial laws. Primary residence is an issue which may arise where parents have joint custody or joint guardianship. Primary residence is the home where the child spends most of their time. The parent with primary residence has some additional decision making authority.