The rules for granting custody does not
vary a great deal from province to province. Nor are they substantially
different from the rules given under the Divorce Act (see the Twenty-Three Commandments of Child
Custody under the Canadian Divorce Act). Some of the custody and
access principles under the Divorce Act which
also apply, for the most part, in guardianship hearings under the Family Relations Act
("FRA") include preservation of the status
quo, non-separation of
siblings, the "tender
years doctrine", the non-relevance of conduct
issues, and the guidelines to be followed when a custodial parents wants to
move.
However, a number of
procedural or legal rules are different. British Columbia (BC) courts are bound
to child custody decisions of the B.C. Court of Appeal which would not bind
courts in other provinces. This summary takes into account some of those
decisions. Also, this summary is only general legal information and should not
be taken as legal advice to be applied in a real situation. For one thing, it
is not possible to examine all of the sections of the FRA in this brief
summary, or other custody-related laws such as B.C.'s Child, Family and
Community Service Act. For another, our society depends on the welfare of
our children, often a factor of the quality of their care. Any binding
agreement undertaken on child custody should only be taken after consulting
legal or other professionals. © Lloyd Duhaime 1994-2001.
BC's FRA has a
dedicated "child custody, access and guardianship" section (Part 2).
Any time a custody application is brought before BC court under the FRA,
the application has to be served on all parents as well as third-parties if
those third-parties have temporary or permanent custody of the child (for
example, a grandparent, relative or foster home).
Perhaps the most peculiar
feature of the FRA
is that it refers to "guardianship" rather than "custody".
By comparison, the Divorce
Act never uses the word "guardian". Although there are some
minor differences which might keep law professors talking for hours, and for
most extents and purposes, "guardianship" in the FRA means the
same thing as custody: a package which includes all the rights, duties and
responsibilities of a parent. The only technical difference is that in B.C.,
"custody" may not include authority over the child's estate (i.e.
their property) whereas unqualified "guardianship" does.
As is the case with all
child custody laws in
Unless there is a court
order to the contrary, parents enjoy "joint guardianship" while they
live together, whether they are married or not. "Joint" means that
they must consult and agree on major decisions affecting the welfare of the
child. The courts will lean towards joint custody upon
separation unless there is animosity between the parents, or if one of the
parents does not want custody.
One outspoken Supreme Courtof
The courts just about never
order "split custody",
a rare custody order where custody is transferred from parent to parent, like a
ping-pong ball, every time the child is with one or the other of the parents.
The FRA provides a
list of who has custody of a child:
If there is
a conflict over custody rights, then whoever has a valid court order granting
custody prevails. Failing a court order, but where there is a written agreement
which covers custody, then the person with custody according to that agreement
prevails. Failing either a court order or an
agreement, the person with whom the child normally resides has custody. If both
parents appear to claim their home as the child's residence, then custody goes
to "the person who usually has day to day personal care of the
child."
Parents can make wills
which appoint a guardian to their child in the event of their death. The death
of one parent/guardian does not affect the surviving guardian who then
exercises these rights exclusively.
Parents can agree on which
of them will be guardian but the court can overlook this agreement if, in the
court's opinion, it is contrary to the best interests of the child.
BC courts can award
guardianship to third-parties such as grandparents or relatives but only in
exceptional circumstances such as the existence of a strong bond between the
child and the third party, where such an order would continue the living
arrangements presently enjoyed by the children (i.e., respect of the custody status
quo) or where the court feels that there would be a risk to the child's welfare
if it were to be placed in the custody of a natural parent. This is a good
example of how the interests of the child prevails
over the interests of parents in child custody cases. In these cases, where the
child is over the age of twelve, the child's consent is required although, once
again, the judge does have the power to overrule the child's preference.
BC courts will consider the
views of the child provided that the child is old enough (generally, at least
nine) but is not bound by the child's preference.
Above are listed
some articles prepared by Lloyd Duhaime, Barrister
& Solicitor,
of
The information is only known to be accurate as of the date of publicaton.
This is not legal advice but is general legal information only.
This web page is provided as a public service
by the
Duhaime
& Company is a full service law firm.
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copyright) to and including 2057 A.D., Lloyd Duhaime,