Custody and Parenting Time
Navigating the court system to obtain custody and parenting time can stressful and emotional. Our firm can help you with obtaining parenting time, enforcing parenting time or arrangements and any other aspect of child custody or parenting arrangements in BC. Our firm has appeared on child custody and parenting matters in every level of court in British Columbia.
Where a couple is legally married, the courts may make an order for parenting time under the Family Law Act or the Divorce Act. The Divorce Act refers to time with a child as custody while the Family Law Act refers to time with a child as “parenting time”. Both acts are similar in terms of the wording and objectives. Only legally married couples may apply for parenting time under the Divorce Act.
How does the court decide parenting arrangements?
Under either the Family Law Act or the Divorce Act the court must only consider the best interest of the child in making any order for custody and parenting time. The Family Law Act gives the court factors for determining what the “best interest” of a child is. If there is family violence, the court must consider it when making any custody and parenting arrangement.
37 (1)In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
(2)To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:
(a)the child’s health and emotional well-being;
(b)the child’s views, unless it would be inappropriate to consider them;
(c)the nature and strength of the relationships between the child and significant persons in the child’s life;
(d)the history of the child’s care;
(e)the child’s need for stability, given the child’s age and stage of development;
(f)the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g)the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h)whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
(i)the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j)any civil or criminal proceeding relevant to the child’s safety, security or well-being.
Guardians and Parenting Time
One key difference between the Family Law Act and the Divorce Act is the concept of guardianship. Under the Family Law Act only guardians can have “parenting time” and exercise “parenting responsibilities” with a child. Where both parents live together with the child before and after separating, each parent is presumed to be a “guardian”. As a guardian, a parent can make certain decisions with respect to the child during their parenting time. These decisions are called “parental responsibilities” and are set out in section 40 of the Family Law Act. The court may give one guardian different parenting responsibilities than another guardian or each the same. Most importantly, under the Family Law Act there is no presumption that both guardians should share equal parenting time and responsibilities.
If you and your spouse can agree on a parenting schedule you may also resolve your dispute by agreement. A family agreement signed by both parties can be enforced as it if it was an order of the court. Our firm has experience with negotiating, preparing and enforcement of family agreements in Provincial and BC Supreme Court.
If you need legal advice about parenting arrangements or custody, contact us and start your consultation today.