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Fred C. Lowther - Divorce Lawyer Vancouver

Child Custody, Guardianship & Access

Custody and access disputes are often the most difficult aspect of a matrimonial separation. They are certainly among the most difficult cases that courts are called upon to decide.

The law relating to child custody and access is primarily governed by the federal Divorce Act of Canada, and by the new Family Law Act of BC (FLA). Unmarried parents, and others, are governed only by the FLA. Married parents have access to the Divorce Act. Guardianship is an FLA matter, but the Court under the Divorce Act can order “terms and conditions” respecting custody and access. The FLA speaks of “parenting responsibilities”, “parenting time”, and contact (where a parent is not a guardian). There are now significant differences between the two laws with respect to the issue of custody and access.

In deciding who should have custody of a child, or access to a child, parents, and the court, are required by law to be guided by what is in the “best interests of the child” and not necessarily by what a parent wants. The desires of a parent must consistent with what is “best” for the child. In making a custody or access decision, the court will take into consideration such factors as who looked after the child while the parents lived together, what each parent's plan for the care of the child is following the separation, and the willingness of each parent to allow or facilitate access to the child by the other parent. The court will also be directed by the principle that the child should have maximum contact with each parent. There are many considerations as to what is “best” for a particular child, and there is no “one size fits all” or “presumption” of what is appropriate in each case..

The court can order that one parent have sole custody or guardianship, or that the parents share joint custody/guardianship. Generally, courts will not order parents to share joint custody of a child unless there is some evidence or indication that the parents will be able to cooperate and communicate with one another and to make decisions and resolve differences relating to the child with a minimum of conflict. Where it is apparent that to expect the parents to make joint decisions will only lead to further conflict, the court is likely to give sole custody/guardianship of the child to one of the parents. At the same time, there are court decisions supporting joint custody/guardianship even where parents have had conflict. In such cases the court often requires counseling and other terms to promote co-operation.

Under the FLA, there will either be joint guardianship and a sharing of parental responsibilities (and authority) or sole guardianship. Under the Divorce Act, there can be sole or joint custody. In some instances, a parent can be given sole custody, but the court can still order the parents to share joint guardianship of the child. This generally means that the parties are expected to share “parenting responsibilities”, and consult with one another, keep one another informed with respect to the child, (in particular; respecting important social, educational and health-related events in the child's life). When a parent has sole guardianship, that parent generally has the right of decision concerning the children. The other parent may still be able to challenge such a decision by way of application to the court. Before going to court on such matters, it is imperative to obtain legal advice and information, and explore various avenues of resolving the issues. Advice from experienced counsel sooner rather than later, is strongly recommended.

Note: The information provided above is general information only and is provided as a public service. For detailed information and advice with respect to your specific circumstances, please contact our office for an appointment.

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