Our child custody lawyers at Pier Law & Mediation understand that custody, guardianship and parenting time are often of utmost importance in terms of legal issues faced by divorcing or separating spouses. Pier Law & Mediation child custody lawyers explain the difference between these three concepts below.

Custody and Guardianship generally refer to the rights and responsibilities parents have with respect to their Children. Custody is a term used under the federal Divorce Act (although not specifically defined in the legislation) and guardianship is the term used under British Columbia’s provincial legislation, the Family Law Act.

In a nutshell, Child Custody means having the legal right to make major decisions about how to care for and raise your child or children. These decisions include:

• medical care;
• education;
• moral instruction; and
• religion.

Guardianship under the Family Law Act refers to a bundle of responsibilities of a parent who is a guardian called Parenting Responsibilities.

Guardianship and parenting responsibilities are integral to a parent’s ability to continue meaningful involvement in their child’s life post-separation. Our Surrey child custody lawyers have the experience, knowledge, and skills necessary to help you navigate these important legal rights.

As family lawyers located in the White Rock and South Surrey area, we often see that our clients are confused about the difference between child custody and the time spent parenting their child: Custody and Guardianship are not about who your child lives with or how much time your child spends with each of you.

On the contrary, the time a parent spends with his child is referred to as access or parenting time. In British Columbia, only a guardian may have parenting time with a child. For those parents who are not guardians, any time or visits they have with their children is called contact. In some other provinces across Canada, the legal term that is used is access.

The term access is used in the federal Divorce Act and the terms parenting time and contact are used in our provincial legislation, the Family Law Act.

It is important to note, however, with the incoming amendments to the Divorce Act scheduled to take effect on March 1, 2021, the terms custody and access will be replaced with the terms decision-making authority and parenting time. Child custody lawyers in BC welcome this change to our federal legislation as the terminology and concepts are more in line with our provincial legislation.

Refer to our website often for updates about the upcoming changes to the Canadian Divorce Act, or contact one of our child custody lawyers now to find out more about how these changes may affect you.

The child custody lawyers at Pier Law and Mediation are well-versed in the interpretation and application of the Best Interests of the Child Principle. In any child custody or guardianship determination, the primary focus is on the Best Interests of the Child. This principle has been a guiding factor for Courts across the country for decades.

However, the Best Interests of the Child Principle has taken on even greater prominence in recent years. Under the old Family Relations Act of BC, the Best Interests of the Child Principle was to be given ‘paramount consideration’ when determining child custody, guardianship and other parenting matters. However, when the Family Law Act was introduced in 2013, the Court is now mandated to consider Best Interests of the Child only on child custody and related matters. To most child custody lawyers in BC, this change is appropriate and in keeping with the times.

In BC, both parents of a child are presumptively guardians of their child while that child’s parents are living together and after the child’s parents separate. Even if a child’s parents never reside together, the non-resident parent can still be a guardian of the child in certain circumstances, such as when that parent regularly cares for the child.

Regardless of whether you are deemed a guardian by default under the terms of the Family Law Act, two parents can make an Agreement that each parent is a guardian of a child. Alternatively, a parent or other person can apply to the Court to become a guardian of a child under the Family Law Act.

Only a guardian can have parenting responsibilities and have parenting time with a child.

The Family Law Act defines “parenting arrangements” as: arrangements respecting the allocation of parental responsibilities or parenting time, or both.

A parent or other person who is not a guardian can still have court ordered time with a child, but this time is called Contact.

Whether or not a parent has parenting time or contact with their child is a significant legal difference and bears further investigation into impacts of each with a Surrey child custody lawyer.

Section 37 of the Family Law Act lists the factors determinative of the Best Interests of the Child. Section 37 states:

(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.
(3)An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.
(4)In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

Contact a child custody lawyer at Pier Law & Mediation now to see how the Best Interest of the Child Principle affects your custody and guardianship case.

Much like child custody under the Divorce Act, guardianship is made up of various responsibilities a guardian owes toward a child. These responsibilities are termed parenting responsibilities under the Family Law Act. Only a guardian may have parental responsibilities. For those parents who are not guardians, any time or visits they have with their children is called contact.

Section 41 of the Family Law Act sets out the parental responsibilities. Some of these responsibilities include:

• Making day-to-day decisions affecting the child and having day-to-day care, control and supervision of your child
• Making decisions about where your child will reside
• Making decisions about your child’s education
• Making decisions about your child’s participation in extracurricular activities
• Authority to apply for a passport for your child
• Making decisions about your child’s cultural and religious upbringing
• Authority to give, refuse or withdraw consent for your child

Assessing how parenting responsibilities are shared and divided between parents is an integral part of a child custody lawyer’s job when assisting clients. At Pier Law & Mediation, White Rock and Surrey Family Lawyers, we understand that parenting arrangements are usually of top priority for separating parents. Our child custody lawyers are standing by to assist you.