When parents separate and divorce, they must make decisions and reach agreements regarding the care of their children. When they cannot agree, the courts can then become involved to make decisions for them. Both the federal Divorce Act and the provincial Family Law Act govern issues relating to the care of children.
The same principles apply to people who conceive and parent children together who were not in a long term relationship.
What is a guardian?
A guardian is a person who can legally care for a child. Usually, biological parents who have lived with their child and/or regularly cared for their child are automatically considered guardians even after they separate. Biological parents, however, who have not lived with or regularly cared for their children are legally required to apply to court to be granted guardian status if the other guardian does not agree to grant shared guardianship.
What rights do guardians have relating to parenting responsibilities and time?
Only guardians can have parental responsibilities and parenting time with a child. Having guardianship of a child or being a guardian, however, does not mean that the person automatically can have parenting time with the child. This is dependent on many factors. On the other hand, all guardians must be included in major decisions about and for the child.
Guardians can enter into agreements about parenting arrangements which state how parental responsibilities and parenting time are allocated between them. Alternatively, parenting arrangements can also be set out by court order.
In the Best Interests of the Child
The needs of children are paramount whenever the court considers issues involving children. The primary focus is what is the best interests of the children in terms of their physical, emotional and psychological well-being, as well as their safety.
What is considered “in the best interests of the child”?
When deciding what is in the best interests of the children, certain criteria will be considered such as:
- The child’s health and well-being
- The child’s views, if appropriate
- The child’s age and stage of development
- The specific needs of the child and the ability of the parents to meet the child’s needs
- The history of the child’s care
- The nature of the existing relationship between the child and each parent
- The ability of the parents to look after the child
- Any issues of substance abuse, physical abuse, emotional abuse or neglect
A court must also consider the appropriateness of parenting arrangements that would require guardians to cooperate and whether those requirements would put the safety, security or well-being of the child or other family members at risk.Parenting Arrangements (formerly known as Child Custody and Access)
What is a parenting arrangement?
Parenting arrangements is a term used to describe both parental responsibilities and parenting time with a child. These were formally known as “child custody and access” which are terms that are no longer used.
What is parenting time?
Parenting time refers to the time a child spends with a guardian which can be determined either by agreement or by court order if an agreement cannot be reached. Generally, there is no automatic presumption of equal parenting time between the guardians.
Can non-guardians have parenting time?
Non-guardians can be granted contact time instead of parenting time. Non-guardians can include non-guardian biological parents, grandparents or other extended family members.
How is parenting time or contact time determined?
How parenting time or contact time is divided between the guardians and non-guardians is based on an assessment of what is in the best interests of the children. There are a variety of potential co-parenting schedules and each family’s parenting time schedule is determined individually based on a variety of factors and circumstances.
What are parental responsibilities?
Parental responsibilities refer to decisions guardians can make for a child such as:
- The day-to-day care of the child
- Where the child will live and who they will live with
- Where the child will go to school
- What extracurricular activities the child will participate in
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an Indigenous child
- Medical, dental and other health-related treatments for the child
- Applying for a passport, licence, permit, benefits for the child
Parental responsibilities can be shared between guardians or they can be held by one guardian only.
Parental responsibilities must be exercised in the best interests of the child and in consultation with the child’s other guardians unless an order or an agreement provides to the contrary.
What is a parenting agreement?
A parenting agreement is a document that the courts use to enforce the needs of children after parents separate or divorce. A parenting agreement can either be part of a separation agreement which also deals with other issues or it can be a single agreement which only deals with issues relating to the children.
Parenting agreements typically help to resolve the following issues:
- Where the children will live
- Parenting time schedules
- The amount of child support payable and the schedule of child support payments
- How day to day decisions will be made regarding childcare
- How major decisions will be made regarding childcare
To be legally enforceable, all parenting agreements must be filed with the court and they must clearly provide for and address what is in the best interests of the children.
Changing a Parenting Agreement
Can you change a parenting agreement?
A parenting agreement can be changed if there has been a change of circumstances relating to what is in the best interests of the children since the time the initial agreement was made.
Examples of changes of circumstances justifying a change in a parenting agreement include:
- The old parenting schedule is no longer convenient
- One parent has relocated with or without the child
- The child wishes to see the visiting parent less or more often
- One parent is not meeting his/her obligations such as being late or canceling visits