If you are amid a separation or divorce, and have children, determining you and your former partner’s respective parental responsibilities will inevitably become an important issue. It is important to understand the current legal landscape when it comes to potential custody arrangements, and how you will be affected by custody laws.
Types of Custody
There are three general categories of child custody: sole custody, joint custody, and split custody.
The term “sole custody” refers to an arrangement where one parent has the legal responsibility for caregiving and making decisions that will affect the child. The child will typically live with this parent most the time.
The term “joint custody” refers to a situation where both parents bear responsibilities for their children, and for decision-making. The children can live with both parents, though it is possible that they will primarily reside with one parent. The term “shared custody” refers to a particular form of joint custody, where each parent is responsible for the child or children for at least 40 percent of the time.
When the term “split custody” is used, this means that there are at least two children with one or more of them living with one parent and one or more of them living with the other parent.
Differences Between Federal and Provincial Law
When it comes to child custody, there are two pieces of legislation to consider: The Family Law Act, a provincial statute, and the Divorce Act, a federal statute. If you are married, the provisions of the Divorce Act must be considered; if you were never married, only the Family Law Act is to be considered. Both contain provisions relating to child support and custody.
Matters relating to the Divorce Act are heard in the Supreme Court of British Columbia, while matters in relation to the Family Law Act are often heard in the Provincial Court. For example, an Order granting custody to one parent or the other (or both) can only be obtained in Supreme Court pursuant to the Divorce Act, while an order relating to the specific allocation of responsibilities under the Family Law Act, can be obtained in either the Provincial Court or Supreme Court. It is best to speak to a family lawyer to fully understand the difference between the two pieces of legislation and how to go about getting the Order(s) you need.
Notably, the two pieces of legislation use quite different terminology; the Divorce Act uses the terms “custody” and “access” in relation to parents’ rights when it comes to their children, while the Family Law Act uses terminology that focuses on parental responsibilities, rather than rights — words such as “parental responsibilities,” “parenting arrangements,” and “contact time.” Some people view that the wording used in the provincial legislation is preferable as it keeps the focus on the children’s interests as the key priority rather than the parents’ rights.
Custody and Child Support Payments
You may be wondering how custody affects a parent’s child support payment obligations. Federal legislation (i.e., the Divorce Act) has given rise to the creation of a set of rules that applies to calculating the amount of child support one parent must pay to the other parent to help support children. The guidelines apply to all parents who are separated, regardless of whether the parents were ever married, lived common-law, or never lived together at all. Although the guidelines are not themselves law, they are based on the Divorce Act, and generally Judges adhere to these guidelines. There are however a few exceptions.
The guiding principle of the rules is that both parents should share the same portion of their income with their children as if they lived together. The following two factors bear on the amount of child support to be paid:
The income of the parents who will pay support, and
The number of children who will be entitled to support payments.
Where child support disputes go before the court, judges are generally required to follow the federally mandated guidelines to determine the amount of child support. The full text of the rules can be found here.