At Mills Family Law, our family lawyers in Vancouver hold profound expertise in child custody and parenting arrangements. We can guide you through this challenging journey with compassion, transparency, and an unwavering dedication to the well-being of your family.
The end of your spousal relationship does not signify the end of your parenting relationship. While parents know best how to protect their children’s interests, making these decisions can become challenging at the breakdown of a relationship. At Mills Family Law we strive, wherever possible, to put parenting arrangements in place that facilitate healthy, long-lasting coparenting for the children.
Parenting arrangements relate to the care of a child. The Divorce Act applies to married spouses only and addresses parenting arrangements as relief arising from divorce. Only the Supreme Court can make orders under the Divorce Act. The BC Family Law Act applies to both married and unmarried parties. The Family Law Act uses the concepts of “guardianship,” “parental responsibilities,” “parenting time” and “contact” to address parenting arrangements and the care of children.
Section 16(8) of the Divorce Act and section 37 of the Family Law Act require the court to make orders about parenting arrangements based only on the best interests of the child. The court must undertake a contextually sensitive inquiry into the needs, means, condition and other circumstances of the child whose best interests are before the court: Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 44.
The BC Family Law Act defines who is and isn’t a “guardian.” Parents who live together will continue to act as guardians even after a separation or divorce unless ordered otherwise by the court. A parent who has never lived with a child is presumed to be not a guardian unless otherwise appointed in an agreement by all guardians or by court order, or the parent regularly provides childcare. Guardianship is rarely removed except by court order and in extreme cases where there is a prolonged history of parental neglect or abuse.
Only a guardian may have parenting time and exercise the responsibilities of a parent. Only a guardian can make the day-to-day decisions affecting a child, including where that child lives and goes to school, with whom the child associates, in which activities they participate, their cultural and spiritual upbringing, providing consent for medical care, and applying for a passport. Guardians may or may not share parental responsibilities equally and the court allocates the responsibilities with respect to the best interests of the child.
Parental responsibilities include decision making for the child. The Family Law Act states that only a guardian can have parental responsibilities. Unless an order provides otherwise, a child’s guardian may exercise all parental responsibilities, in consultation with the other guardian(s). A child's guardian must exercise his or her parental responsibilities in the best interests of the child.
Parenting responsibilities include the following:
(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
(b) making decisions respecting where the child will reside;
(c) making decisions respecting with whom the child will live and associate;
(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;
(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an Indigenous child, the child's Indigenous identity;
(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;
(h) giving, refusing or withdrawing consent for the child, if consent is required;
(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
(j) requesting and receiving from third parties health, education or other information respecting the child;
(k) subject to any applicable provincial legislation,
(i) starting, defending, compromising or settling any proceeding relating to the child, and
(ii) identifying, advancing and protecting the child's legal and financial interests;
(l) exercising any other responsibilities reasonably necessary to nurture the child's development.
Under section 40 (4) of the Family Law Act, when determining parenting arrangements, the court should not presume that parental responsibilities should be allocated equally among guardians, or that parenting time should be shared equally among guardians. The court should not presume that decisions among guardians should be made separately or together.
A Master of the Supreme Court (Master Joyce) is credited with innovating this form of guardianship. The Joyce Model is often ordered in situations where parents share guardianship, but one guardian has majority parenting time and the guardians are often in conflict when making decisions regarding the children.
Under the Joyce Model, each parent has the obligation to discuss with each other matters and decisions of a significant nature concerning the child, including those concerning health (except emergency decisions), education, religious instruction, and general welfare. If the parents cannot reach agreement despite their best efforts, the parent with primary care of the child has the right to make such decision. This is sometimes called the “final decision-making power”. The other parent has the right to bring a court application if they disagree. Each parent has the right to obtain information about the child from third parties.
A Horn Model order requires that both parents consult with each other regarding any major decisions respecting the child. If they cannot agree, then neither will have the final say, and must resolve their disagreement through mediation, collaborative family law, arbitration, some other form of dispute resolution, or court.
The Horn Model is typical in cases where the parents share parenting on an approximately equal basis, where both have at least 40% of parenting time.
The guardian with the majority of parenting time with the child will exercise all parental responsibilities in respect of the child and the other guardian(s) will have the right:
The Divorce Act provides that a child should have “as much time with each spouse as is consistent with the best interests of the child.” As recently stated by the Supreme Court of Canada, this does not mean “maximum contact” with each parent. Past conduct will not be a factor when determining parenting time unless that conduct is relevant to the parenting arrangements. The court always assesses the best interests of the children when making orders about parenting time and access.
Only a guardian can apply for parenting time. If you are a parent but not a guardian, you will not be able to apply for parenting time. This is because parenting involves making day-to-day decisions about the child, which only a guardian can make. Without being a guardian, you have no authority to make major decisions about a child. Instead, you must apply for access. The court always assesses the best interests of the children when making orders about parenting time and access.
A crucial first step in co-parenting as separated parents is to create a parenting schedule. A good parenting schedule will deal with much more than just how much time the children will spend with each parent. The many details of a child’s schedule should be considered, including the location and time of exchanges between households, mealtimes, bedtimes, school events, extracurricular activities, medical appointments, holidays, and more.
Parents understand the needs of their children better than anyone else, including a judge who will have very limited time to learn about your family before making orders that may fundamentally reorder your lives. Ideally, separating parents will use this knowledge to create a parenting schedule that best meets these needs before a judge is tasked with doing so.
Various parenting plan templates are available online and can form the foundation for your shared parenting plan. Examples include:
At Mills Family Law we have extensive experience preparing parenting schedules and can help you create the plan to fit your family’s needs.
Under the BC Family Law Act, the time that a child spends with those who are not guardians, including grandparents, aunts, uncles, and others is called contact. If a person who is not a guardian wants a court order to allow them to spend time with a child, they must apply for contact. Deference to the custodial parent’s views is a relevant consideration, subject to any other evidence with respect to the best interests of the child. The custodial parent’s views cannot trump the best interests test but may form one component of it.
When hearing an application for contact with a child, the court must consider the best interests of the child in light of all applicable considerations. The court will also consider the reasonable views of the child’s guardians, so long as they are reflective of the best interests of the child.
To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered. A list of these needs and circumstances is provided at section 37 of the Family Law Act:
(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.
Section 16(8) of the Divorce Act and s. 37 of the Family Law Act require the court to make parenting orders based solely on the best interests of the child. The court must undertake a contextually sensitive inquiry into the needs, means, condition and other circumstances of the child whose best interests are before the court: Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 44.
A “Section 211 Report” (ordered under section 211 of the Family Law Act) is an assessment of a child’s needs and views, as well as the ability of the parents or guardians of the child to meet those needs. A Section 211 Report can be initiated by an agreement between parents, or more commonly by court order. A Section 211 Report will include recommendations for parenting arrangements, including parenting time and parental responsibilities. These reports must be prepared by a person approved by the court (usually a psychologist, family justice counsellor or social worker). Section 211 Reports are “useful tools” for the court, because they are prepared by a professional third-party with personal experience with the children and their parents. While courts are not required to follow the recommendations made in a Section 211 Report, they carry a lot of weight.
If you are a parent and you want to relocate with the children, whether to another city or to another province or country altogether, and the other parent or guardian disagrees with the move, then this decision can raise complex legal issues. Different steps must be taken depending on whether there is already an order or family law agreement relating to parenting arrangements in place. Relocation cases can be the most difficult cases in family law. These are often “all-or-nothing” questions with no middle ground. Because of this, a court’s decision can have profound consequences for the children and the parents. Seek legal advice if you are considering a relocation.
If there are no orders or agreements relating to parenting arrangements in place, then section 46 of the Family Law Act applies and the court will first ask whether the move will have a “significant impact” on the child’s relationship with a guardian, or other people that that significant role in the child’s life. Not all proposed moves are “relocations” that trigger legal consequences under the Family Law Act. See Chin v. Hegarty, 2017 BCSC 1321 (Chambers) for a discussion of whether a move will have a “significant impact” on a child’s relationships.
If the court finds that a move will have a significant impact on a child’s relationship, the court will then ask whether the move is in the best interest of the child(ren) after considering the factors listed at section 37 of the Family Law Act. The court will also examine the reasons for the change in the location of the child's residence. The court will not consider whether the guardian who is planning to move will do so without the child.
To determine whether a move is in the best interests of a child, the court will consider all of the child's needs and circumstances, including:
For an order or agreement made under the Family Law Act, the parent or guardian planning to move must provide at least 60 days’ notice of the proposed location and date of the move if a move will have a “significant impact” on the child’s relationship with important people in their life. Unless a guardian objects and applies to court within 30 days after receiving the notice of relocation, the relocation will be allowed. If the other parent objects to the move, the court will look to see whether the move is in the best interests of the child.
If parenting time is not shared by the parents equally, then the court assumes that the move is in the child’s best interests if the following is true:
If parenting time is shared by the guardians of a child on an approximately equal basis, then the relocating parent needs to show that:
If an order has been made under the Divorce Act, the court must first determine whether the move will be a material change in the circumstances of the child. A move that results in a child losing frequent, meaningful contact with the other parent or guardian will be a material change in circumstances. The court will then assess whether the move would be in the best interests of the child.
The factors for the court to consider are set out at section 16.92(1) of the Divorce Act, and include:
You can always change a family law agreement if both parties agree to the change. The new term(s) should clearly replace the old terms and be added to the original agreement as an agreement or addendum. The amending agreement must be signed by both parties, witnessed, and both parties should independently receive legal advice.
If you are not able to agree to new terms, then you can pursue several options outside of court. These include information meetings with lawyers, mediation, mediation + arbitration, and collaborative family law. Generally, these alternatives to court will result in more affordable, longer lasting solutions than litigation. Read about alternative dispute resolutions.
If you are unable to change your family law agreement by consent, Mills Family Law will litigate for you effectively.
