October 29th, 2020 by FH&P Lawyers

Our family law team is experienced in a wide range of services including helping in marriage contracts, cohabitation contracts, separation agreements, divorce proceedings and custody disputes.

There are so many questions parents have when they have made the difficult decision to separate. One of the most frequent questions our family law team receives is “what happens to the children if I separate from my spouse?”

Associate Dan Shea, who has years of family law experience answers that very question.


One of the issues we deal with in family law and one of the questions that clients frequently come to us with, is what happens with the children after separation?

The answer to that depends on which law you’re going under. In the Divorce Act, people talk about custody and in the British Columbia Family Law Act people talk about parenting rights, parenting time and parenting responsibilities. The two are very roughly similar, custody usually involves who gets the children and who's responsible for making the decisions so there's a fair amount of overlap. People generally in British Columbia use the British Columbia Family Law Act because it's a little more fine-grained, it allows for a little more nuance in the way the questions can be approached and dealt with. Practically speaking in British Columbia anyone who has had a child and were together at the time the child was born is a guardian of the child so if you and your former spouse were married and have now separated and had children during the marriage you're both guardians. The bigger question, the more important questions have to do with who gets to have parenting time and who's responsible for making decisions about the children. The answer to that is both very simple and relatively complex; it's simple because the only test really is what's in the best interest of the child. It's complex because that involves a whole lot of factors and people can have very different ideas about what is in the best interest of the child. The Family Law Act sets out a number of factors to decide what's in the best interest of the child and that can mean looking at the children's health, their emotional well-being, it can be looking at the nature and the strength of the relationships the child formed with the parents and to some extent that can involve who was the primary caregiver of the child during the relationship, so that's often a factor that the court will consider. Other things that the courts will look at are the needs for stability, given the child’s age, the ability of the persons who are potential guardians to be looking after the child so the ability of them to meet the children's needs. That can become the case of a fair amount of controversy when parents have different ideas about how strong of a parent they are and how strong of a parent their former spouse was. That can often be the subject of applications in court where people want to get expert advice about who's best equipped to look after the children.

In the majority of cases, parenting time and parenting responsibilities are shared between the parents and that's fairly typically the way things go. In some cases people decide my former spouse is perhaps not well-equipped to look after the child and they want to do something to prevent them from having parenting time with the child. Those are cases where there might be criminal activity, drug or alcohol abuse, potential violence and those are the sorts of issues where the courts will say we're going to depart from this shared custody or shared parenting time model and look at where one parent is solely the primary caregiver and the other one might just have no parenting time or supervised parenting time or in some cases might have what they call “access” which is simply being allowed to have some time with the child but not acting in a parental capacity.

Those are the sorts of things that we help you with here at FH&P Lawyers, if you have questions about your parenting rights or your parenting responsibilities after separation from your spouse, please give us a call.

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