Understanding Parenting Orders: Guardianship, Custody, Contact, and More

There is a lot of terminology used throughout family law proceedings that can be difficult to keep track of. This is heightened by legislative changes and certain differences in terminology used between the provincial Family Law Act and the federal Divorce Act.

Understanding the basic terminology and the orders you can seek in court can help you to ensure the best outcome for you and your children. It is typically a good idea to hire a lawyer to help you navigate your family law dispute, but the following blog provides a brief overview of the key terms and the types of court orders that you may seek.

Guardianship

Guardianship, as defined by section 40(1) of the Family Law Act, refers to the ability of a person to have parental responsibilities and parenting time with respect to a child. This used to be called “custody”, and includes the general care, upbringing, and any other incidence of parenting. Narrowly speaking, it means physical custody or day-to-day care and control, but more broadly it means the full bundle of rights and responsibilities of a parent.

In the Divorce Act, this is referred to as a “parenting order”, which allocates the decision-making responsibility and parenting time with respect to a child, in accordance with section 16.1(1).

Section 39 of the Family Law Act clarifies that a child’s parents are generally their guardians, though an agreement or order made after separation may provide that a parent is not the child’s guardian. Moreover, a parent who has never resided with the child is not the child's guardian unless there is a parentage arrangement under section 30, an agreement with all other guardians providing that the parent is also a guardian, or the parent regularly cares for the child.

Parental Responsibilities

The first component of guardianship, in accordance with the definition provided above, is the ability of a person to have parental responsibilities with respect to a child. Section 41 of the Family Law Act sets out the following elements of parental responsibilities:

(a)  making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

(b)  making decisions respecting where the child will reside;

(c)   making decisions respecting with whom the child will live and associate;

(d)  making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;

(e)  making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an Indigenous child, the child's Indigenous identity;

(f)    subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;

(g)  applying for a passport, licence, permit, benefit, privilege or other thing for the child;

(h)  giving, refusing or withdrawing consent for the child, if consent is required;

(i)    receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

(j)    requesting and receiving from third parties health, education or other information respecting the child;

(k)   subject to any applicable provincial legislation,

(i)              starting, defending, compromising or settling any proceeding relating to the child, and

(ii)             identifying, advancing and protecting the child's legal and financial interests;

(l)    exercising any other responsibilities reasonably necessary to nurture the child's development.

Section 43 of the Family Law Act expressly requires a child’s guardian to exercise parental responsibilities in the best interests of the child.

In the Divorce Act, this is referred to as “decision-making responsibility”. Section 2(1) defines decision-making responsibility as the responsibility for making significant decisions about a child’s well-being, including in respect of

(a)  health;

(b)  education;

(c)   culture, language, religion and spirituality; and

(d)  significant extra-curricular activities

Parenting Time

The second component of guardianship, in accordance with the definition provided above, is the ability of a person to have parenting time with respect to a child. Section 42 of the Family Law Act defines parenting time as time that a child is with a guardian, as allocated under an agreement or order. During parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

This is also referred to as “parenting time” under the Divorce Act.

Agreements and Orders Respecting Parenting Arrangements

Section 45 of the Family Law Act provides that two or more of a child’s guardians may make an agreement for the allocation of parental responsibilities and parenting time, including the implementation or dispute resolution for such an agreement. The agreement is binding only if it is made after separation or when the parties are about to separate. If the agreement is in writing and is filed with the court, it is enforceable as if it were an order of the court. However, on application by a party, the court must set aside or replace all or part of the agreement respecting parenting arrangements if it finds that the agreement is not in the best interests of the child.

Section 46 of the Family Law Act provides that, on application by a guardian or person applying for guardianship, a court may make an order for the allocation of parental responsibilities and parenting time, including the implementation or dispute resolution for such an order. However, such an order may not be made if the child’s guardians are not separated. A court order under this section can require the parenting time with a child be supervised by another person if the court is satisfied that supervision is in the best interests of the child.

Contact

Contact refers to the time a child spends with a person other than the child’s guardian, including a non-guardian parent, or other relatives such as grandparents, adult siblings, aunts, uncles, step-parents, and other people who are important to the child. As per sections 58-59 of the Family Law Act, the terms of contact are set out in an agreement or an order.

This is also now referred to as “contact” under the Divorce Act. Per section 16.5 of the legislation, a contact order may provide for visits or other forms of communication, or any other matter the court considers appropriate. This used to be referred to as “access”, which was not defined specifically but often included the right to spend time with the child as well as to “make inquiries” and “be given information” as to the child’s health, education, and welfare.

Agreements and Orders Respecting Contact

In accordance with section 58 of the Family Law Act, a child’s guardian and a person who is not a child's guardian may make an agreement respecting contact with a child, including describing the terms and form of contact. Such an agreement is only binding if made between all of the child’s guardians having parental responsibility for making decisions respecting with whom the child may associate. If the agreement is in writing and is filed with the court, it is enforceable as if it were an order of the court. However, on application by a party, the court must set aside or replace all or part of the agreement respecting contact with a child if it finds that the agreement is not in the best interests of the child.

Section 59 of the Family Law Act provides that, on application, a court may make an order respecting contact with a child, including describing the terms and form of contact. A court may grant contact to any person who is not a guardian, including a parent or grandparent. The order can include a requirement that contact be supervised by another person if the court is satisfied that supervision is in the best interests of the child.

If you would like to learn more, please contact our team of Vancouver family lawyers for a consultation.