In 2019, an estimated 2.68 million Canadians had been through a divorce, sustaining the increasing trend in divorce rates since the year 2000. Going through a divorce or separation can often be complicated and distressing, and is exacerbated when children are involved.
Which parent should obtain legal custody? What are the logistics of access or contact hours? Will the children be happy? There are endless questions to consider in these types of situations.
Ideally, these things should be discussed objectively and in private. However, it is not uncommon that couples find it difficult to hold an amicable discussion, let alone reach an agreement as they undergo the ordeal of separation. If this is the case, you can ask a court to decide.
In British Columbia, child custody and support are under the regulation of both the federal Divorce Act and the provincial Family Law Act. Depending on which one of the two your case falls under, there may be different terms used to refer to the same concepts.
For example, you may be familiar with ‘custody’ and ‘access’ under the Divorce Act, and ‘parental responsibilities’ and ‘parenting time’ under the Family Law Act. In this post, we address some frequently asked questions about winning the custody of your child/children.
Is the Mother Guaranteed to Win Child Custody?
It is not a guarantee that a mother will attain child custody. The law in British Columbia favors the parent who is in the best interest of the child/children.
In the past, ownership of custody of young children (age five and below) was more commonly awarded to the mothers, as mothers were perceived to have more time and inclination to raise children.
However, that may not be the case now as more women are joining the workforce full-time, and under the BC Family Law Act, the Court’s primary consideration is the best interests of the child. This means that a father is equally likely to get child custody — as long as it is in the child’s best interests.
What Are the Factors That A Court Takes Into Account?
When deciding on the custody or parenting agreements of a child, instead of prioritizing the needs or desires of either parent, a court will consider different factors to determine if the best interests of the child are being fulfilled.
Some of the elements a court will look at before deciding which parent (or both) should have custody of a child are:
- the financial, physical, and mental ability of a parent to exercise their responsibilities and provide for their child;
- the history of the child’s care;
- the views of the child, under appropriate situations;
- the relationship between the child and the parent or other significant people in the child’s life; and
- any civil or criminal proceeding or history of family violence that will affect the child’s safety, security or well-being.
While it is more likely that child custody may be awarded to the primary caregiver if the child is young, the court will generally put more weight into considering a child’s wishes if the child is older and mature enough.
Again, the decision of child custody or parenting agreements will be made based on what the judge believes is in the child’s best interests.
What Happens if There is More Than One Child Involved?
If you have more than one child, the courts will generally try to keep them together. The reason for this is that siblings are often a vital source of emotional support and stability throughout each other’s lives.
The court will try to avoid any decision that may cause further change or stress to a child who is already undergoing a great deal of anxiety and pain. However, in rare situations, split custody may occur if it is deemed to serve the child’s best interests.
What Are the Types of Child Custody?
There are several types of child custody in BC:
Sole custody
One parent or guardian has the responsibility of caring for the child/children and making all decisions regarding the child’s/children’s upbringing and welfare. The child/children will live with that parent/guardian for most of the time.
Joint or shared custody
The most common type of custody. Both parents share the responsibilities and rights for their children, and usually (but not necessarily) time with the children is divided equally between the parents.
Split custody
This type of custody applies only to couples with more than one child. One or more of the children will live with one parent, and the other child or children will live with the other parent.
Conclusion
Separation or divorce is an ordeal for all parties involved, especially children. They may not understand what is happening, or the reasons why.
Talking with your former partner to establish a parenting plan that will work best for the children moving forward is usually the best option to secure a suitable, safe, and happy environment for the children to grow up in. If applicable, discussing with the child/children what their views and opinions are can help provide this for them as well.
If you are unable to reach an agreement, try to seek help from family justice counsellors, mediators, arbitrators or parenting time coordinators. While going to court may appear to be a popular solution, it may pose as a traumatic experience for yourself as well as your children.
If you need help drafting a separation agreement (including custodial decisions), or if you need a Family Law lawyer to represent you in court, please give us a call today.
Disclaimer – The information contained herein is of a general nature. It is not intended to be legal advice and it is not intended to address the exact circumstances of any particular individual or entity. No one should rely on or act upon such information without receiving appropriate professional advice and without a thorough examination of their particular situation. Please contact our office if you have any questions with respect to the content of this entry, this website, or our Terms and Conditions .