Child Custody During a Separation or Divorce

Separation and divorce are a challenging time for families, especially children who are often forgotten in the equation or used as pawns against the ‘other’ spouse. In British Columbia the government recognized this, changing the laws in 2013 to get away from the idea of winning and losing that the words custody and access suggest. The new approach moves away from parents’ rights over their children and focuses more on parents’ responsibility for their children.

Custody and access have been replaced with guardianship, parental responsibilities, parenting time, and parenting arrangements in BC, while the Federal Government still uses the former terms to talk about parenting after separation, with the two laws based on two different ways of thinking. 

Family law is one of the most diverse areas in the practice of law, touching on all legal issues that impact families, including custody and access. At Soll & Company, our over 36 years of experience, including practice at every level of British Columbia courts, can help you with legal advice and assistance to help you resolve the situation for your family. To help you understand these changes, we’ve pulled together some information on these changes.

According to the Legal Services Society of British Columbia, under the Family Law Act when a child’s parents live together, they are both the child’s guardians or have guardianship. When they separate, they both continue to be guardians until they agree to change that or a court orders a change. Guardians are responsible for making decisions about their children called parental responsibilities. This can include day-to-day decisions as well as larger ones about health care, education, religious upbringing, extracurricular activities, etc.

After a separation or divorce, guardians can share or divide parental responsibilities in whatever way works best for the child. You can record these decisions in a legally binding separation agreement or ask the court to decide. Parenting arrangements are made for parental responsibilities and parenting time within this agreement and these arrangements do not include contact with a child. That is addressed as parenting time, the time that a guardian spends with the child, and it must be decided on the basis of the best interests of the child. Contact refers to the time that a parent who isn't a guardian, or any other person who isn't a guardian, spends with the child.
The federal law, called the Divorce Act defines custody as “where the child lives, who they live with, and the rights and responsibilities a guardian has for the child in his or her care;” and access as the time children spend with the parent, grandparents, aunts and uncles, and other relatives they don't usually live with.

It can be confusing to figure out the correct terms to use. Whether the Divorce Act or the Family Law Act (or both) applies to your situation – if you’re married, common-law, a single parent, or even another guardian – can have an impact on your child’s future. For parents trying to come to an agreement about custody, the best interests of the children should be their primary consideration.

If you require legal advice, contact our lawyers in Kamloops at Soll & Company at 250-372-1234 today and let us take steps to resolve your legal issues.

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