Child Custody and Access (DA); Parentage, Guardianship and Contact (FLA) - Children and the Family Law Act

The FLA replaces the concepts of custody and guardianship that existed under the Family Relations Act with a re-conceptualized model of guardianship under which persons who are guardians exercise “parental responsibilities” and have “parenting time” with a child.  Persons who are not guardians, including parents who are not guardians, will have “contact” with the child.  It is more common for orders to be made pursuant to the provincial family legislation as opposed to the federal Divorce Act.  The FLA provides the parties and the court with more flexibility in creating arrangements that work for all of the parties, and of course are in the best interests of the child.  Where a matter is in Provincial Court, the FLA will always apply as the Provincial Court does not have the jurisdiction to apply the Divorce Act.

The regime for care and time with a child is set out at Part 4 of the FLA.  You should pay particular attention to the definition of best interests of the child at s. 37 of the FLA.  The best interests of the child will be the only consideration of the parties and the court.  The  section lists various items to be considered, including the child’s health and emotional well being, the history of the child’s care, the child’s need for stability, the ability of each person seeking time with the child to exercise his or her responsibilities, the ability of the parents to cooperate, and the impact of family violence on the child.