Clients are often confused about the terms, guardianship, custody, and parenting time.
There are different terms used when it comes to parenting arrangements, depending on which legislation is applicable.
In Canada, the federal Divorce Act, and the provincial Family Law Act use different terminology when it comes to parenting arrangements. The Divorce Act only applies to people who are married. The Family Law Act applies to common law spouses, and married couples.
The Divorce Act uses the terms custody and access. Custody usually refers to the parent who has primary residency of the children, and has the children in their care most of the time, whereas access refers to the time that the other parent has with the children. If one parent has sole custody, the other parent has access.
The term custody relates to the idea of possession of property. Legislatures are moving away from the idea of children as property. In fact, the federal government introduced legislation to amend the Divorce Act to use the term “parenting order” and “parenting time” instead of “custody” and “custody order.”
The BC Family Law Act does not use the terms custody or access, but rather guardianship, parenting time, parental responsibilities, and contact time.
Guardianship refers to a person, usually a parent, who can exercise parenting time and parental responsibilities.
Parents are generally guardians of their children. If two parents lived together after the birth of the child, and prior to separation, the parents are automatically guardians. A parent who never lived with the other parent, but who has regularly cared for the child is also a guardian.
A parent who has never lived with the other parent, and has not regularly cared for the child is not a guardian, and would need to apply to be appointed guardian.
A person who is not a parent can apply to become a guardian, but that person has to establish that it is in the best interest of the child that they be appointed a guardian (and undergo background checks).
Only guardians can exercise parenting time and parental responsibilities.
A person who is not a guardian can apply for contact time with a child. That includes parents who are not guardian, and extended family members.
Parenting time refers to the time a guardian has with the child, and parental responsibilities refers to the decision making authority and a guardian can exercise on behalf of the child.
Typically courts and lawyers prefer to use the updated language in court orders and written agreements dealing with children.
If you have any questions or require direction or advice on your case do not hesitate to contact us. We are here to help. It’s what we do. We offer FREE consultations to all new family law clients and civil law clients. If you need guidance through the Family Law Act or the Divorce Act, be sure to text us: 778-760-1717 (BC) 587-410-7443 (AB)