Lisa M. Dewar, Family Law and Medation  
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Parenting Arrangements

If you have dependent children, and both parents have helped to raise the children during their cohabitation, the children probably have a relationship with both parents. As both parents usually offer resources for the children, typically the children will be shared after separation unless one of the parents is grossly incompetent.

The best interests of the children

Pursuant to section 37 of the Family Law Act, when determining residence and parenting time, the best interests of the child must be considered, including:

  1. the child's health and emotional well-being;
  2. the child's views, unless it would be inappropriate to consider them;
  3. the nature and strength of the relationships between the child and significant persons in the child's life;
  4. the history of the child's care;
  5. the child's need for stability, given the child's age and stage of development;
  6. the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
  7. the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
  8. whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
  9. the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
  10. any civil or criminal proceeding relevant to the child's safety, security or well-being.



The following terms are often used to describe how the children will be shared under the Divorce Act (Canada):

Custody
 
  • Under joint custody, both parents are presumed to be competent. The children may live primarily with one of the parents, or in a shared parenting regime.

  • The children may live with each parent during specified terms without reference to "custody".

  • Sole custody may be appropriate if it is in the children's best interests where the parents are unable to cooperate or the other parent is absent.
Access
  Reasonable access
 
  1. usually means alternate weekends, a mid-week visit and a sharing of holidays (depending on work schedules and availability of the parents).
  2. is flexible to allow for changing conditions as the children grow older
  3. allows arrangements depending upon what is reasonable under the circumstances (short, frequent visits are more appropriate for very young children)
  Generous and liberal access
 
  1. usually means more contact with the children
  2. may set out more specific terms for clarification, or remain open for more flexibility
  3. may be appropriate where the parents are mature and where communication between parents is low conflict
  Specified access
 
  1. specifies the terms for clarification (dates, times, restrictions, exceptions)
  2. may be appropriate where there are safety concerns for the children or where the parent who does not have primary care is unreliable
  3. usually has to be varied as the children grow older
  Notice (confirmation of intention to exercise access)
 
  1. may be appropriate if the terms are variable or the parent with access rights is unreliable
  2. if there is regular contact, notice may be required to advise the other parent of an intention not to exercise access


The following terms are often used to describe how the children will be shared under the Family Law Act (BC):

Guardianship
There is a presumption of joint parenting during cohabitation, and parents are usually joint guardians, it may be useful to spell out guardianship rights and obligations in a Separation Agreement. If the other parent has never resided with the child, sole guardianship may be appropriate.

Parental Responsibilities
  Pursuant to Section 41 of the Family Law Act parental responsibilities include:
 
  1. making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
  2. making decisions respecting where the child will reside;
  3. making decisions respecting with whom the child will live and associate;
  4. making decisions respecting the child's education and participation in extracurricular activities;
  5. making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;
  6. giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
  7. applying for a passport, licence, permit, benefit, privilege or other thing for the child;
  8. giving, refusing or withdrawing consent for the child, if consent is required;
  9. receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
  10. requesting and receiving from third parties health, education or other information respecting the child;
  11. subject to any applicable provincial legislation,
    a ) starting, defending, compromising or settling any proceeding relating to the child, and
    b ) identifying, advancing and protecting the child's legal and financial interests;
  12. exercising any other responsibilities reasonably necessary to nurture the child's development.
Parenting Time
Specifies the time each child spends with each parent (similiar to custody and access under Divorce Act).

Contact
Non-guardians may have specified contact with a child (for example, grandparents).


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