Child Custody

Child Custody

When couples with children separate, decisions must be made about how the children will be brought up, who they will live with, and how they will be cared for.

When considering how children will be brought up, a child’s guardians (usually the parents) exercise their parental responsibilities to make those decisions.

The time that a child spends with each parent is called [hyperlink parenting time and access] “parenting time” or “access” depending on whether it is under the Family Law Act or Divorce Act.  Spouses can come to an agreement regarding these decisions, or in the event they cannot agree, a court can make an order it considers to be in the best interests of the child.

Guardianship – What Does it Mean to be a Guardian of a Child?

If you are a “guardian” of a child, this will generally mean that you have certain rights and duties involving the care and upbringing of a child. A guardian has the right to exercise a certain set of “parental responsibilities” that are set out in section 40 of the Family Law Act.

These responsibilities include things like making decisions about the child’s health, where the child will live, extracurricular activities that the child will participate in or other day to day decisions on behalf of the child (for more information on parental responsibilities see “Parental Responsibilities” [insert hyperlink to Parental Responsibilities page]).

Who is (and who is not) a Guardian?

Under the Family Law Act, parents will generally be considered as guardians of a child by default. Under section 39 of the Family Law Act, if the child’s parents are living together and then separate, each parent remains the guardian of the child and may only lose their guardianship status either by agreement between the parents or by a court order.

A parent who has never lived with a child is not a child’s guardian unless one of following applies:

  1. The parent and all of the child’s guardians make an agreement stating that the parent is also a guardian of that child;
  2. The parent regularly cares for the child; or,
  3. They are parents because of an assisted reproduction agreement under section 30 of the Family Law Act.

If you are the new spouse or partner of a guardian of a child, you do not automatically become a guardian for that child because of your relationship with the guardian. For the most part, it is also not possible for the guardian of a child to simply appoint you or another person to be a guardian of that child, unless the other person is a parent.  You will have to apply to the court to become a guardian of the child and can do so under section 51 of the Family Law Act. An application to the court for guardianship can be a complicated process and the lawyers at Cote & Evans Trial Lawyers can provide you with advice and assist you in your application for guardianship.

How does a person become a guardian?

Anyone can apply to the court to become a guardian.  This includes parents who aren’t guardians (see above), step-parents, siblings (brothers or sisters), extended family members
people, and even people who aren’t family members.  The court is very cautious when determining who should become a guardian and considers only the child’s best interests in making its decision.  

To apply to become a guardian, you need to complete an application and submit it to the court.  As part of that application, you need to submit an affidavit setting out information about yourself and your family, your relationship to the child, and how you plan to care for the child.  This affidavit must also include police and MCFD records checks.  You must then deliver notice of your application to all affected parties (including the child if he or she is over 12), and they have a chance to respond.  A judge then makes a decision about whether you will or will not be a guardian of the child.

Parental alienation and estrangement

Parental alienation and estrangement are distinct concepts. However, in some cases elements of each concept may co-exist. Both terms are used to describe a breakdown in a relationship between a child and a parent. The key distinction between the two terms is the cause of the breakdown between the relationship between the child and the parent.

Parental alienation is a blame-laden term that refers to a situation where one parent has launched a campaign against the other parent and has changed the child’s perception of the other parent. The child will often reject the alienated parent but with little or no objective reasonable basis for it.

Parental estrangement is a term that describes a situation where a child has understandably refused contact with a parent because of that parent’s conduct. The child’s reasoning in these circumstances will often be rational and reasonable.

If you believe your child has been alienated it is important to act quickly and book a consult with one of our family law lawyers in order to discuss your options.

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