The main responsibility of a parent is to provide physical, emotional and psychological care for their children. When parents are not in a committed relationship with each other or do not reside in the same home, that responsibility must be shared between the parents. The legal concepts associated with parenting our children are: guardianship, custody, access and child support.
Guardianship is a bundle of corresponding rights and responsibilities for children. Parents who are married to each other are joint guardians of their children. Parents who have never been married to each other may be joint guardians depending on several factors that are set out in the Family Law Act. The best way to think about guardianship rights and responsibilities is to consider that for every right a child has their parents have a corresponding responsibility. For instance: children have a right to eat – parents have a duty to feed them.
A corresponding right and responsibility that flows from guardianship is the right of custody and access. Put another way, the child has a right to live with and be cared for by each of their parents. The parents have a responsibility to provide that care to the child and to determine how the care of the child will be shared with each other. The child may live primarily with one parent or may live with each parent in a more or less equal arrangement.
Another corresponding right and responsibility that flows from guardianship is decision making. Guardians have a responsibility to make decisions about where a child will live, where they will go to school, what religion they will practice (if any), who they may associate with, what extra-curricular activities they will do, what non-emergency medical care they will receive, whether they will have counseling, etc. Those decisions may be made by one parent or by both parents together. If the decisions are made by both parents together we call that “joint custody”. If one parent makes all the decisions we call that “sole custody”. Sometimes, the parents divide up decision making responsibility with, for instance, one parent deciding where the child will go to school and the other parent deciding what extra-curricular activities the child will do.
When parents cannot agree on how to divide the rights and responsibilities of guardianship they may seek the Court’s guidance. All decisions regarding children must be made by considering their “best interests”. Essentially, you must consider what the needs and interests of your child are and then consider how your proposed plan best meets those needs and interests.
There are two statutes we use in making agreements regarding parenting or when applying to the Court for Orders regarding parenting. If the parents are or were married, they may apply for Court orders under the Divorce Act or under the Family Law Act. Non-married parents must apply for orders regarding their children under the Family Law Act.
The terminology used for parenting orders is different under each statute. For instance, the Divorce Act uses the terms custody to describe the right given to the parent with whom a child lives primarily and the term access to describe the right of visitation given to the other parent. The Family Law Act uses the term parenting to describe when the child will be in the care of each parent. If the child has only one guardian, then the other parent’s time with the child will be called contact.
Children are entitled to be heard on parenting issues that affect them. The Court may order that your children be represented by a lawyer to ensure their voice is heard by both parents and the Court. Having a voice does not mean the children have the right to choose the parenting plan. However, as children develop the capacity to understand their own needs and interests their views and preferences will be factored into decisions.