New BC Family Law Act + Caring For Children After Separation or Divorce
The movie Kramer v. Kramer about a just-separated father who must learn to care for his son on his own when his wife takes off, and then must fight in court to keep custody of his son when the mother returns and asks for sole custody, highlighted how much a child can become a pawn in a separation and divorce dispute and the flaw to the idea that one parent is better than two. With real life examples of that movie in separated families all across British Columbia, the new Family Law Act dramatically changes how the law treats children when their parents separate.
The new Family Law Act does not use the adversarial terms “custody” and “access” and replaces them with a new model of parenting after separation which prioritizes a child’s entitlement to proper parenting and meaningful time with each parent over a parent’s right to control the child’s upbringing and to control the child’s time with each parent.
Under the new BC Family Law Act, parents who have lived together after their child was born will be the child’s guardians until they agree otherwise or the court orders otherwise. A guardian has the power to appoint a person to act as guardian in the event of that guardian’s illness or death.
A child’s guardian can include people other than the child’s parents. Guardians have parental responsibilities in respect of child’s person and estate including the duty to raise the child, to make decisions about where the child lives and with whom the child spends time, and to make choices about the child’s health care, education, religion, assets and other key matters. Parental responsibilities can be divided equally or shared on unequal basis between guardians. The time a child is with a guardian is parenting time, and references in the legislation to parenting arrangements means arrangements made in respect of parental responsibilities and parenting time.
People who are not guardians, including parents who are not guardians, have contact with a child and do not have parental responsibilities. Parenting arrangements, which are really guardian parenting arrangements, do not include arrangements made in respect of contact by non-guardians.
The best interests of the child is the paramount consideration and the parent’s needs and wants will be a secondary consideration. The list of factors that parents, family law professionals and courts must consider when making decisions about a child will grow significantly, and will include family violence and a presumption that a child’s view must be heard.
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