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About Child Custody & Access in Canada

Child custody is the legal authority to make decisions on behalf of a child whose parents are not in an intact relationship.

While the phrase “child support” is the most common way to refer to this legal authority, the Divorce Act actually uses different, more specific terms to describe the arrangements parents make for their children when they separate:

Decision-making responsibility means making important decisions about your child’s well-being, including their healthcare, education, religion, culture, and language.

Parenting time means the time a child spends in the care of a parent. It includes time when the parent is not present, such as when the child is at daycare or school.

Having decision-making responsibility and parenting time means:

  • your child is in your care at least some of the time,
  • you have the responsibility to make decisions about your child, and
  • you have the right to get information about your child’s well-being, including information about the child’s health and education.

If you and your spouse have already agreed to a plan about parenting time, decision-making responsibility, or access, you can include it in a parenting order you apply for during your divorce application.

The Divorce Act: Parenting Orders

The Divorce Act provides guidelines for how child custody works after a divorce and provides the legal means for couples to plan how custody will work for themselves.

This includes permanent child custody decisions, as well as interim orders, which are temporary.

Parenting Order

16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or

(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

Interim order

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

The full Divorce Act dictates all aspects of how divorce works in Canada and how a family court must operate during a divorce hearing.

How is Child Custody Determined?

There are a few factors that determine the outcome of child custody decisions in British Columbia. Above any other factor, the court will always consider the best interests of the children first.

They will, however, take other factors into consideration when determining what the best interests of the children are. This includes:

• The parent-child relationship
• Respective parenting abilities
• The mental, physical, and emotional health of each parent
• The relative financial stability of each parent
• The typical schedule of each parent
• Support systems available to each parent
• Care arrangements prior to separation
• Any sibling issues
• The child’s wishes

The court will put the best interests of the children above all else when under the age of 18. However, once a child turns 12, their wishes to live with one parent or another is usually respected by the courts.

The past behaviour of a parent will not be taken under consideration in a custody decision.

However, if there are extenuating circumstances which directly reflect on the person’s ability to act as a parent, the court will consider them.

This includes things like substance abuse or allegations of abuse or neglect. Adultery and other marital offences are not sufficient to deny custody.

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Types of Child Custody in British Columbia

As defined earlier, there are two main types of custody.

  1. Decision-making responsibility, more commonly known as legal custody
  2. Parenting-time, more commonly known as physical custody

Both legal custody and physical custody can take the form of any of four “sub-types” of custody:

  1. Sole or full custody
  2. Joint custody
  3. Shared custody
  4. Split custody

This means that in total there are 8 types of custody, since each of these 4 can be legal or physical.

sole custody in British Columbia Dhanu Dhaliwal Law Group family law

Family Law in British Columbia News

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