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British Columbia's Family and Criminal Law office located in Kelowna, British Columbia, Canada

The "Basics" of Care of the Children

Custody / Guardianship / Parenting Time / Parenting Responsibilities / Parenting Arrangements

How does one determine issues such as:

  • Who gets the children this week? 
  • Who determines the children's religion? 
  • Who do the children spend their birthdays with?
  • Who do the children spend their summer holidays with? 
  • The other parent is preventing me from spending time with my children; what can I do?

 

Step 1: Determine which legislation applies. 

The Divorce Act and the Family Law Act both apply. 

The Divorce Act deals with theses issues using the terms "custody" and "access". However, the term "guardianship" is used on the case law (i.e., the cases interpreting the Divorce Act). 

The Family Law Act deals with these issues using the terms "guardianship", "parenting time", "parenting responsibilities", "parenting arrangements", and "contact".

It is important to note that the terms under the Divorce Act do not mean the same thing as the terms under the Family Law Act

Only married spouses can apply for relief under the Divorce Act. Both married and unmarried spouses can apply under the Family Law Act. 

Because of federal "paramountcy", any order made under the Divorce Act can override an order made under the Family Law Act which deals with the same issues. 

 

Step 2: Determine your rights in relation to the child. 

In general, you must be a guardian in order to have court-ordered time with your child or to be able to make decisions pertaining to the child. 

You will note that orders made under the Divorce Act tend to refer to the "Joyce" or "Horn" models of guardianship. 

Orders dealing with "custody" under the Divorce Act also relate to your rights with the child. 

 

Step 3(a): Determine how much time you want with the child. 

Orders relating to the time that each parent spends with the child are generally dealt with by using the terms "custody", "access", "parenting time", and "contact". 

You should note that the time that you spend with your child can affect the amount of child support payable. For instance, parents with the "shared" care of the child will pay a different amount of child support as compared to the situation when one parent has the child for more than 60% of the time. 

 

Step 3(b): Determine how important decisions relating to the child will be made. 

Orders relating to this issue are dealt with by orders relating to "custody", "guardianship", and "parental responsibilities". 

The default position is that both parents will share all of these decisions and will consult with each other. These decision often relate to the medical care, educational care, and extracurricular activities for the children. 

 

In closing, any order relating to the arrangement for the care of the children can have important consequences. For instance, it can affect the amount of child support payable (which in turn can affect the amount of spousal support payable), and it will almost certainly affect the ability of either party to relocate with the child in the future. 

Written by
Mark J. Chiu
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