When a couple with children separates, important issues must be decided. Where will the children live? How much time will each parent spend with the children? How will parenting decisions be made? BC child custody issues can be discussed using a variety of legal terms, such as custody, access, guardianship, and parenting time. Years of experience as a Prince George divorce lawyer, have showed that these legal terms are often misunderstood, and that confusion can delay resolution of family law matters. This post is intended to clarify some key child custody issues in British Columbia.
What laws apply to my child custody claim in BC?
In British Columbia, both the federal Divorce Act and the provincial Family Law Act apply to family law matters such as child custody and child support. The law that will apply in your situation depends on whether you were married or not. Legally married spouses can apply under either law, depending on the type of relief they are seeking. Unmarried parents (whether they cohabited or not) and common-law spouses must apply under BC’s Family Law Act.
What legal terms do I use to describe my child custody issues?
The Divorce Act and BC’s Family Law Act use different legal terms to describe similar concepts. Canada’s Divorce Act uses the terms custody and access:
Custody refers to the right to make important decisions affecting your child’s well-being, religion, education, and health (legal custody). It can also refer to the right to have the child live with you (physical custody). In Canada, both parents are equally entitled to seek custody and the courts prefer parents to share custody, which is known as joint custody. If joint custody is not in the child’s best interests, sole custody can be awarded to one parent. Sole custody may be in the child’s best interest in situations where there has been abuse, neglect, or violence; drug, alcohol, or mental health issues; or the other parent has been absent from the child’s life.
Access refers to time with the child. Access or “visitation” is most often used to refer to the time a child spends in the care of the parent who is not the primary caregiver. An access parent (or “non-custodial” parent) does not have the right to make important decisions affecting the child’s well-being, but does have the right to make inquiries and be given information about the health, education, and welfare of the child.
BC’s Family Law Act moved away from using the terms custody and access, and instead uses terms intended to encourage the sharing of parental responsibilities after separation:
BC’s child custody law refers to guardians. The general rule is that each parent is presumed to be a guardian of their child, unless the parent has never lived with the child and does not regularly care for the child.
Guardians have parental responsibilities which include deciding how to raise the child, where the child lives, and issues such as religion, education, and health. Parental responsibilities can be shared by the guardians so that important decisions are made jointly, or responsibilities can be split among the guardians (for example, one guardian has sole responsibility to decide on the child’s religion, while the other guardian has sole decision-making authority on the child’s education and extracurricular activities).
Parenting time refers to the time a child spends with a guardian. When a guardian has parenting time, that guardian is responsible for caring for the child and day-to-day decision making for matters affecting the child.
Contact refers to the time a child spends with someone who is not a guardian. This may be a non-custodial parent (i.e. a parent who is not a guardian of the child), a grandparent, or other family member.
How are post-separation parenting issues decided?
Regardless of the terminology used, there are two main ways to resolve family law issues: by agreement or by court order. If parents can agree on child custody issues themselves, they can document the arrangement in a written separation agreement and avoid going to court. If parents are not able to reach an agreement, they will have to ask the court to decide for them. When deciding family law matters involving children, the court’s only concern is the best interests of the child. Parents can continue to negotiate after starting family litigation; if settlement cannot be reached, a trial will be necessary. Mediation, negotiation, or collaborative family law may be used to help reach an out-of-court agreement on parental rights and responsibilities. A written agreement can be filed with the court and enforceable as a court order.
Get custody advice from an experienced Prince George divorce lawyer
If you are going through a separation, you need to know your rights and responsibilities as a parent. Whether you are considering negotiating a parenting plan with your ex or are already locked in a custody battle, you should get advice from a qualified divorce lawyer. Prince George’s Dick Byl Law Corporation provides trusted legal advice and handles all aspects of family law. We offer flexible legal consultation, customized solutions and work diligently to ensure that our clients receive an outcome that is best for their family. Call us today at 250-564-3400 or toll-free at 1-800-835-0088 or use our eForm to get in touch with our Prince George family law office.
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