Custody & Parenting Agreements
BOUTIQUE KELOWNA FAMILY LAW FIRM
Parenting arrangements have two aspects to them and can be complex litigious area.
What you need to know about Custody.
The one aspect is “Parental Responsibilities” which encompasses day-to-day care, control and supervision, religion and upbringing and legal and medical issues relating to the child, see Section 41 of the Family Law Act.
The other aspect, which is usually the more litigated area, is “Parenting Time”. Parenting time is the time a guardian is with a child as “parenting time”, see Section 42 of the Family Law Act. Only a “Guardian” can have parenting time. Guardianship is usually the first hurdle to clarify and is defined at Section 39 of the Family Law Act.
The presumption is that while a child’s parents are living together and after they separate, each parent becomes a guardian without the need for a court order. Where a parent has never lived with the child, then an exception has to apply for the party to be classified as a “guardian”.
With respect to parental responsibilities, where there is no order or agreement, then each child’s guardian may exercise all parental responsibilities with respect to the child in consultation with the other guardian, unless there is a reason that consultation would be unreasonable or inappropriate in the circumstances. The parties may by agreement allocate parental responsibilities so that they are exercised by one or more guardians or provide that a certain guardian has final decision making authority. The other guardian can apply pursuant to section 49 for the courts direction on a issue affecting the child.
When dealing with parenting arrangements respecting children, a party can proceed via the Family Law Act or the Divorce Act. If you are proceeding via Provincial Court, then you will be using the Family Law Act. But if you are in the Supreme Court, then you can elect to proceed via the Divorce Act or the Family Law Act. It is important to clarify which statute any order or agreement was made according to, as the same Act will be used when later varying the Order or Agreement.
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