In family law, there are lots of phrases and legal terms often used which can lead to a confusing time for anybody who hasn’t had legal training. A key example of this confusion relates to child custody vs child guardianship. What do both these terms mean? Are they ultimately the same thing? How does the Divorce Act and the Family Act come into play?
Before we begin, let’s address the fact that in 2013 the BC Provincial law changed to disassociate with the terms “custody” and “access”. It was felt that these two phrases implied either winning or losing when it came to children. The courts in British Columbia now prefer to look at the bigger picture of overall parental responsibilities and use the phrases “guardianship”, “parental responsibilities”, and “parenting time”.
However, when it comes to federal law, and more specifically the Divorce Act, the terminology is still the same and refers to custody and access.
If you’re a parent who is experiencing a divorce, the federal Divorce Act will apply to your situation. It’s in this Divorce Act that the term child custody is most commonly used.
Child Custody Explained
When two people are experiencing a divorce or separation, either one may file for custody of their child. The phrase custody essentially means “care” and is applicable to various aspects of a child’s life. For example, who will provide the main care for the child, where will the child live, who they will live with, and who has parental rights and responsibilities for the child.
Joint Custody – Are You Eligible?
Joint custody is a more common method for the courts to determine the outcome of child custody. Awarding a couple joint custody of their child means that each parent has shared care of the child. For example, Mr A and Mrs. A divorce and they are awarded joint custody of their child. The child spends the majority of their time at Mrs. A’s house but stays at Mr. A’s house every Friday to Monday morning.
Joint custody is opposed to sole custody, which is when one parent cares for the child on a full-time basis and the other parent may be granted visitation rights.
Child guardianship applies to three situations:
- Parents who are married and separating;
- Parents who are not married but are separating;
- Parents who remain married but are legally separating.
The issue of guardianship arises under BC’s provincial law, the Family Law Act.
Child Guardianship Explained
When a parent has a child, they become a legal guardian. Therefore, guardianship under provincial BC law means exactly that: a legal guardian for a child. Both biological parents are always legal guardians of a child, unless the court decides that one or both parents are unfit to be a child’s guardian.
Child guardianship equates to two important areas of provincial law: parental responsibilities and parenting time.
Parental Responsibilities 101
If you are awarded child guardianship, you automatically have certain duties to fulfill. These are known as parental responsibilities and will include the following:
- Have daily care of a child;
- Make daily decisions about a child;
- Decide whereabouts a child will live;
- Decide with whom your child associates with;
- Make decisions about your child’s upbringing, for example;
- Schooling and education
This list is by no means comprehensive but does give you an understanding of the responsibilities involved in child guardianship.
When a couple separate, the guardians will be asked to divide up their parental responsibilities with an end goal of whatever is in the child’s best interests. If parents are unable to reach an agreement, a separation agreement will need to be drawn up with the help of a family lawyer.
Let’s look at Parenting Time…
Parenting time means the amount of time a child spends with each guardian. For example, Child A spends Monday to Friday with Mrs. A and Saturday and Sunday with Mr. A.
When a couple separate, both parental responsibilities and parenting time will be assessed and a court will decide the allocation of both these elements. There are hundreds upon thousands of different child guardianship scenarios that could occur — remember that each family is different.
Which kind of divorce or separation you and your partner are experiencing will depend on whether the Family Law Act or the Divorce Act applies to your situation, and therefore whether you’ll need to think about child custody or child guardianship.
Need further family law advice? Get in touch with our family law firm.