Child Custody and Access (DA); Parentage, Guardianship and Contact (FLA) - Types of Orders

Types of Orders

With the new provisions set out in the FLA, the types of Orders may vary greatly as there are any number of combinations of persons who may be guardians of a child or have contact with a child.  The previous models involving custody and guardianship will have to be altered.  However, the following are some potentially common combinations:

  1. joint guardianship;
  2. sole guardianship and contact;
  3. sole guardianship and no contact;
  4. split parenting time (one or more siblings live with each parent)
  5. shared parenting time (the parents have equal or near-equal amount of time with the children.)

Arrangements of split and shared parenting time have an impact on the amount of child support payable. See ss. 8 and 9 of the Child Support Guidelines.

The precise terms of an order or agreement for joint guardianship are often defined to reduce the likelihood of future parental conflict. The most common models of joint guardianship are the Joyce Model, which requires active parental cooperation and consultation, and the Horn Model, which emphasizes the obligation to share information and requires less cooperation on the part of each parent. Precedents of both are attached at Appendix D.  The language will develop with the implementation of the FLA and the use of more alternative dispute resolution methods.

When custody, guardianship, access and contact are resolved in court, the parties typically provide evidence, either viva voce or by affidavit, in support of their positions on these issues. It can be important to offer the corroborative evidence of other witnesses, particularly those who can be seen as neutrals in the dispute of the parents, such as teachers, daycare providers, counselors and physicians.

Community Discussion

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Interestingly, many family lawyers who are dealing with family law proceedings under the Divorce Act are using the term "custody" but including the language of the FLA in orders and agreements with respect to parenting responsibilities and avoiding the term "access" and using the term "parenting time" from the FLA.  Conversely, in FLA cases dealing with parenting responsibilities judges continue to use, sometimes in modified form, the Joyce and Horn models.

As in the past parents continue to instruct me to obtain an order for "sole custody", wanting to limit the other parent's involvement and time with children.  Explaining the concepts of "best interests" and "maximum contact" can be very challenging, invoking frustration and/or anger from the client who equates bad husband with bad parent (which may or may not be the case depending on the applicability of the criteria set out in the family violence section).  As in the pre-FLA days, I continue to believe that lawyers are not well-equipped with adequate knowledge and skills to determine parenting schedules, and that litigation is the worst means of resolving parenting issues.  I try my best to involve a counsellor or a parenting coordinator, sometimes with great success.  Again, it is important to to try and match the client/adverse party personalities, needs, fears and frustrations with the professional who will be able to establish a trusing relationship with both parties and help them move forward on these very difficult issues.

 

The mobility cases remains a very difficult subject to explain, particularly where there is an existing agreement or order is in place addressing parenting, and explaining the test that must be met by the parent wishing to move with the children.

It's really important to be updated about the changes in the law. I was unaware about these various types of orders regarding child custody. Recently I took help of PBCLEGAL lawyers to guide me regarding the child custody issues as I am looking forward for my child custody case.Thanks for sharing this information it helped me a lot.

The previous page of these online materials provide that "There is no basis for ordering that guardians may be designated sole or joint, a parent is or is not a guardian, see S.H. v. R.G., 2013 BCPC 114. The FLA does allow the court to remove a guardian under section 51(b)."  That case interprets the FLA to state that parents are each guardians, and that there can no longer be "sole" or "joint" guardianship.  However, this page, and the sample orders on the following page, all refer to these concepts as still being applicable.  What is the current actual practice/law?