Children Care and Time

Children Care and Time / Custody Post-separation context only (not during marriage) - The fact that people can separate is still quite recent! Paternal power - Father assumed to have control and custody of children in past - Mothers had few rights Tender years doctrine - Presumption that young children should be with their mother Best Interests of the Child Doctrine, s 37 FLA * In both the DA and FLA, the best interests of the child guides decisions Best interests of child doctrine S 37 FLA - Equal right to legal custody (formal equality of both parents) - Shared custody ideals - Complicated balance of needs of children with needs of parents – all interconnected elements Affected by assumptions we make about the relationships of adults and parents - “Although the principle is used in most disputes, we must be aware of its limitations. The best interst principle has a paradoxical nature: while focusing substantive decisions on the best interest of the child, it encourages a decision-making process that is often harmful to children” 37(2) list of factors to consider in best interest of child: - MISSING: Race/culture/heritage - LIST is NOT exhaustive FLA 37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. 37 (2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (a) the child's health and emotional well-being; (b) the child's views, unless it would be inappropriate to consider them; (c) the nature and strength of the relationships between the child and significant persons in the child's life; (d) the history of the child's care; (e) the child's need for stability, given the child's age and stage of development; (f) the ability of each person who is a guardian to exercise responsibilities; (g) the impact of any family violence (h) person responsible for family violence impaired in ability to care for the child (i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, (j) any civil or criminal proceeding relevant to the child's safety 37 (3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. 37 (4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. DA 16(8) Courts shall take into consideration the best interests of the child of the marriage as determined by reference to the condition, means, needs, and other circumstances of the child DA 16(9) Past conduct not relevant to determination unless it is actually relevant DA 16(10) Presumption of maximum contact: A child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and for that purpose shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. Guardianship 37 best interests of child 37(2) best interests of child factors to consider 39 Guardianship – presumption that parents are the child’s guardian and have parental responsibilities 39(3) exceptions for non-residing parent i. if s 30 multiparenty applies ii. if parent does not reside and all parents make an agreement iii. if parent does not reside and has regularly cared for the child 50 who can become a child guardian by agreement 51 who can become a child guardian by order 51(4) the child has or doesn’t have a say? 41 parental responsibilities listed 42 parenting time DA 1985 s 16-17 - Custody, access - Start from different points and perspectives - Federal paramountcy? But the FLA is more current, more sophisticated and in tune with BC people’s lives - 16(10) maximum contact rule - Use Gordon v Goetz test Hansen v Mantei-Hansen, 2013 BCSC 876 at para 117 [117] The new Act is not easily and conveniently compatible with the Divorce Act because the concept of guardianship in the new Act subsumes the concept of custody. It may become apparent that orders respecting children should no longer be sought or made under both Acts, and as the Divorce Act must be pleaded if a marriage is to be dissolved, and as the federal legislation is paramount, orders under that Act alone may become more prevalent. Contact • • • The child’s time with a non-guardian; it does not include “parental responsibilities”. A provision in an order or agreement for ‘contact’ with a child would seem to be comparable to the concept of ‘access’ under the former FRA. Can be supervised You can make minimal decisions at the moment you are with the child (what they should eat) 58(1) Who can make agreements respecting contact 58(2) When is it binding 58(4) Can it be set aside? Yes if not in BIC 59 Can it be made by order? DA 2(1) Custody – care upbringing and any other incident of custody - Not well defined in DA Narrow sense – physical custody only Broader sense – bundle of rights and responsibilities to a child - In the case law the broad meaning seems to have prevailed and adopts a concept of custody almost akin to guardianship of the person that includes: i. 1. The right to determine a childs education, health care, religion and other general well being ii. 2. Physical control over the child Access – Temporary possession of a child for non-custodial parent to see the child - Can be supervised or unsupervised - A parent with no custody/just access has very limited decision-making powers over the child - 16(5) a parent with access has a right to make inquiries and be given information about the child Relocation - When asking for orders that have relocation issues, you can ask to use either DA or FLA IF you are married However when it comes to guardianship and custody, the situation is different because guardianship is FLA, custody is DA concept. Primary concern under both is the best interest of the child Strategy to choosing which regime to seek orders under: - For relocation choose one or the other not both If you are seeking to oppose relocation use DA because of 16(10) maximum contact rule - Also use Gordon v Goetz test If you are seeking relocation use FLA (two tests as options) - If you want to use FLA use Provincial court (as it can’t access DA) 2 tests under FLA: S 46 changes to a child’s residence (no written agreement or order) - 46(2)(a) use best interests of the child factors per 37(2) and reasons for change in residence - 46(2)(b) must NOT consider whether other guardian is planning to also move S 65 relocation definition and application (if there is a written agreement or court order) - a change in the location of the residence of a child that has significant impact on the relationship with a guardian or other persons having a significant role in the childs life - 69(3) use best interests of child factors - 69(4) IF NOT EQUAL PARENTING TIME - must satisfy the proposed relocation is in good faith and relocating guardian has proposed reasonable and workable ways to ensure relationship between other parent is continued then rebuttable presumption in the favour of the custodial parent, - 69(5) IF parents have equal parenting time – same as 69(4) but not presumption in favour of one parent (see case law) - 69(6) determining if in good faith i. Reasons for relocating, whether it will make life better for child and guardian, whether notice was given, restrictions in agreement or order - 69(7) must not consider whether a guardian would still relocate if the child’s relocation was not permitted Fotsch v Begin, 2015 BCCA 403 at paras 1-16, 24-40, 57-65, 72-83; Facts: The father appeals an order permitting the mother and the parties’ young child to relocate to Germany. He submits the trial judge erred in law by failing to apply the four-scenario analysis set out in S.S.L. v. J.W.W. and in considering whether the father would relocate to Germany if the mother’s application was granted. The father also submits the trial judge made errors of fact that were material to his decision. Held: Appeal dismissed. Mother allowed to relocate to Germany with child. Ratio: Parties had equal parenting time and had an interim order in place used s 69 FLA required relocating guardian to establish that 1) the relocation is proposed in good faith, 2) there are reasonable arrangements have been proposed to preserve the relationship with the other guardian; 3) relocation is in the best interest of the child. Reasons: - The FLA provides a comprehensive and mandatory statutory test for determining relocation applications 69 - does not include the four-scenario analysis from S.S.L. v. J.W.W. - no statutory prohibition on considering whether a non-relocating guardian would move if the relocating guardian’s application was allowed. - The trial judge placed no undue weight on the father’s evidence with respect to this factor and did not rely on it in order to make a presumptive disposition in favour of the mother and child’s relocation. - As directed by the FLA, he considered and weighed a multitude of factors in determining that the best interests of the child was for her to relocate with the mother to Germany. The trial judge also made no material errors of fact upon which he based his evidentiary conclusions. 69 Orders respecting relocation (1) In this section, "relocating guardian" means a guardian who plans to relocate a child. (2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian. (3) Despite section 37 (1) [best interests of child], the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (a) of this section. (4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child, (a)the relocating guardian must satisfy the court that (i)the proposed relocation is made in good faith, and (ii)the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and (b)on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise. (5) If an application is made under this section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court (a)of the factors described in subsection (4) (a), and (b)that the relocation is in the best interests of the child. (6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following: (a)the reasons for the proposed relocation; (b)whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; (c)whether notice was given under section 66 [notice of relocation]; (d)any restrictions on relocation contained in a written agreement or an order. (7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child's relocation were not permitted. Gordon v Goertz, 1996 2 SCR 27 * Use for DA relocation Facts: Custodial parent wanted to move to Australia with her daughter. The father applied for custody or to obtain an order restraining the mother to remove the child: The focus is on the best interests of the child, as opposed to interests and rights of parents. Fact specific analysis. - Judge should consider, among other things: the custody arrangement and relationship between the child and the custodial parent, the access arrangement and the relationship between the child and the access parent, the desirability of maximizing contact between the child and both of the parents, the child’s views, the custodial parent’s reason for moving, only in the exceptional situation where it is relevant to that parent’s ability to meet the needs of the child, disruption to the child of a change in custody, and disruption to the child consequent on removal from family, schools, and the community he or she knows. Similarities and differences between DA and FLA re care and time and custody - - FLA 40(4) no particular arrangements should be presumed v 16(10) DA maximum contact rule Best interests of the child is the only consideration, but it is articulated differently in both statutes Compare ss 16(8)-16(1) DA with 37-38 FLA Compare also with s 3AA (Similar, different, why?) Can differ from one child to another Can be equal or unequal