In many cases, disputes over custody and access can be the most difficult parts of a matrimonial separation, and they're certainly some of the hardest cases that courts are asked to decide. Lowther Family Law, serving clients throughout British Columbia, will help you through this difficult time. Contact us today for an initial consultation.
Child Custody and Access Laws
The Divorce Act of Canada and the new Family Law Act of BC (FLA) are the primary laws related to child custody and access. In the case of unmarried parents and others, the FLA governs what happens. For married parents there is the Divorce Act. The FLA handles guardianship, but under the Divorce Act the court can impose "terms and conditions" in regards to custody and access. The FLA also determines "parenting responsibilities," "parenting time" and contact (if a parent is not also a guardian). As you can see, there are some big differences between these two laws in regards to issues of custody and access.
The Child's Best Interests
When a court must decide who ought to have custody or access, it's required to use the best interests of the child as its guideline, which is not always the same thing as what a parent hopes for. In rendering its decision, the court considers things such as who looked after the child when the parents were together, what each parent has planned for the care of the child after the separation takes place, and the willingness of the parents to facilitate the other parent's access to the child. The other principle guiding the court is the idea that the child ought to have the most contact with each parent possible. Because of these varied factors, there's simply no universal answer that fits every single custody case.
Sole or Joint Custody
A court has the ability to determine whether a parent will have sole custody, or whether both parents will share joint custody/guardianship. Joint custody is usually ordered only in instances where there's evidence that the parents are still able to make decisions in a positive, cooperative way with one another, and resolve their disputes concerning their child with little conflict. If it's clear that join custody will only escalate conflict, then sole custody/guardianship is more likely to result. In those cases, the court may also require counseling between the parents to help encourage future cooperation.
Under the FLA, there may be joint guardianship and a sharing of responsibilities or there may be sole guardianship. Under the Divorce Act, there can be joint or sole custody. Sometimes a parent might be given sole custody, but the court still orders that parents share guardianship. This means that the parents are both expected to consult with one another, stay informed about the child's life, and share parental responsibility. Generally the parent with sole guardianship reserves the right to make decisions about the children, but the other parent may still apply to the court to challenge those decisions. That's why it's so important to consult with a legal team before the matter goes to court. It's much better to have advice from experienced legal counsel sooner than later.
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.