Parenting of Children in a Separated or Divorced Family Situation

Separation and divorce is a stressful time for all family members, including your children. Our Family Law Practice Team lawyers provide a thoughtful approach to designing parenting arrangements best suited to your family.

When people are married, federal legislation called the Divorce Act governs issues related to parenting, and child support. When parents are unmarried, provincial legislation called The Children’s Law Act governs. Both pieces of legislation have been recently amended. The terms “custody” and “access” are no longer used. The term “custody” has been updated to “decision-making authority” and the term “access” is now “parenting time”.

“Decision-making authority” relates to children’s health, education, culture, language, religion and spirituality, and significant extracurricular activities. “Parenting time” is the time that the children spend with each of their parents.

There are many factors to be considered when looking at parenting plans. This includes the age of the children, employment schedules of the parents, and what is in the best interests of the children.

Parties can agree on a parenting plan mutually with each other, with the assistance of lawyers or a mediator, or through the Collaborative Law Process. If parties are unable to agree on a parenting plan, they may require a third party (either an arbitrator or judge) to make a decision regarding the parenting plan.

The paramount consideration is what is in the best interests of the child or children. The best interests of a child are set out in section 16 of the Divorce Act and section 10 of The Children’s Law Act, and include the following factors:

• the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
• the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
• each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
• the history of care of the child;
• the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
• the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• any plans for the child’s care;
• the ability and willingness of each person in respect to whom the order would apply to care for and meet the needs of the child;
• the ability and willingness of each person in respect to whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
• any family violence and its impact on, among other things,
  • the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
  • the appropriateness of making an order that would require persons in respect to whom the order would apply to cooperate on issues affecting the child; and
• any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Some families also like to decide on parenting time for special occasions such as holidays, school breaks, birthdays and important events like Mother’s Day and Father’s Day. This allows families to plan their time with their children and reduce any potential conflict about these special occasions.

Ultimately, a parenting plan needs to work for the specific family. A parenting plan that works for one particular family will not necessarily work for other families.

In some separated families, there are complex dynamics which often require a specialized approach. These can include:

• parental alienation;
• a relocation request by one of the parents;
• a grandparent or other person of sufficient interest desiring legal rights with respect to a child or children; and
• children with special needs, or adult children.

Family Law lawyers at McDougall Gauley LLP are able to provide advice on, and assist with, all aspects related to parenting arrangements.