Hi there and welcome to Hart Legal Talks, Family Law series. My name is Krystle Gill, and I’m a lawyer with Hart Legal. Today I’m going to talk about children, and some of the ways the new Family Law Act will affect them. The old legislation, the Family Relations Act, previously used the words, “Guardianship,” “Custody,” and “Access.” However, the language has changed; the Family Law Act now uses the terms, “Guardianship,” “Parental Responsibilities,” “Parenting Time,” and “Parenting Arrangements” to describe the relationships between parents and their children. You may notice that the terms “Custody,” and “Access” are gone, and the term “Guardianship” has been redefined. Under the new act, guardianship includes parenting responsibilities and parenting time. Parenting Arrangements means arrangements respecting the allocation of parental responsibilities, parenting time, or both.
Now who is a guardian under the new act? Parents will generally be considered guardians. While a child’s parents are living together, and after the child’s parents separate, each parent of the child is the child’s guardian, though this can be varied by an agreement or an order made after separation. A parent who has never resided with his/her child is not the child’s guardian, unless we’re talking about a child that was conceived through assisted reproduction, and there is a written agreement between the intended parents and a potential birth mother or donor. The parent, and all the child’s guardians, made an agreement providing that the parent is also a guardian, or there is a court order, or the parent regularly cares for the child.
Another change is that the parent can now appoint someone to be a stand-by guardian, in the event that he/she becomes unable to care for the child, or to be a testamentary guardian, to become the child’s guardian if the guardian dies.
Guardians are responsible for making decisions that affect their children’s life, which are now called parental responsibilities. These include:
- Day-to-day decisions affecting the child, and having day-to-day care, control, and supervision of the child;
- Decisions respecting where the child will live and with whom;
- Decisions about education and extracurricular activities;
- Decisions about the child’s cultural, linguistic, religious and spiritual upbringing and heritage; and
- Decisions around consenting, or not consenting, to medical, dental, and other health-related treatments for the child.
Only a guardian may have parental responsibilities, and parenting time with respect to a child. The parenting responsibilities can be shared between the parents, the guardians, or they may be allocated.
Time spent with children is now described as parenting time and contact. The time that a guardian spends with a child is called parenting time, and during that time the guardian is responsible for caring for the child, and for day-to-day decision making. The time that a person who is not a guardian spends with a child is called contact, and these persons cannot make decisions about the child’s life. Additionally, the new partner or spouse of the parent does not automatically become a guardian of the child. It is important to note that all decisions relating to the children must be based on the child’s best interest, which includes:
- what the child wants and needs;
- who cared for the child in the past;
- whether there is family violence; and
- the capacity of each of the parents to carry out parental responsibilities.
If you have any questions, please contact us at Hart Legal. Additionally, Legal Services Society has published a guide to the new Family Law Act in BC, that provides a useful overview when trying to navigate this new act.
Thanks for watching, bye for now.