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 Canada, the FRA
says that guardianship is decided by considering "the best interests
of the child." The FRA specifies a few factors which the judge
must consider including the health and emotional well being of the child,
the views of the child (if nine or over), the ties of affection that have
developed, the education of the child and the capacity of persons eligible
for custody to discharge parenting duties (pardon the legalese but these
are words used in the FRA).
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 Canada judge recently said that joint
custody is "an ideal solution of optimism over prudence" while
clearly stating that in family breakup situations, decision-making should
be vested in only one parent. But BC courts continue to prefer joint custody
arrangements to the point where there is some suggestion that an undeclared
legal presumption exists in favour of joint custody.
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:
- As noted above, where the parents still live together, joint custody
exists.
- When the parents are separated, the custody is excsecised exclusively
by "the parent with whom the child usually resides".
- If custody has been decided in a court order, then custody is according
to the court order.
- If a written agreement exists that establishes custody, then custody
is according to the agreement.
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.