Families Change Guide to Separation & Divorce

2.2 - Judge's Video

2.2 - Judge's Video

The purpose of this video is to inform parents about different ways to resolve family disputes.

We’ll be talking about dispute resolution options such as mediation, collaborative law and about negotiated agreements. As well, court procedures are explained and Parenting coordination will be described.

It will explore the role of judges, lawyers, mediators and other services in assisting families during the process of separation.

It will explore how parents are responsible for making decisions based on the best interests of their children.

This video will explain key concepts and terms used in the British Columbia Family Law Act, implemented in 2013.

The two levels of court available to people with family law issues will also be described.

Every year in British Columbia, thousands of parents decide not to live together anymore. The process of ending a relationship is not often an easy one.

In this emotional and difficult time, parents who are separating have to make important decisions about their children.

It is important to become as well informed as possible prior to making significant decisions that will affect your family.

When decisions need to be made about the children, the law considers only the best interests of the children – it is the same whether parents were married, lived in a common-law relationship or where parents had little involvement with each other.

After separation, many parents work out new parenting arrangements for their children themselves. Parents who are unable to work out new arrangements on their own can get help from outside agencies, such as mediation services, collaborative law groups, or the courts.

As a general statement, I can say that after a separation, parents do not have to go to court to resolve disputes concerning their children.

It is better if you and your former partner can come to a fair agreement on how to settle your own issues without involving the court. This way you can tailor the agreement to fit your family’s circumstances rather than the court making decisions for you.

It also can reduce frustration, save time and you can avoid expensive legal and court costs. Avoiding these difficulties can also benefit your children in the long run.

Special considerations are necessary when violence is a factor in a relationship. After parents separate, family violence must be considered when making decisions about arrangements for the children. It is also an important consideration when deciding which approach separating couples should take to resolve family issues. 

Lawyers, family mediators and other family dispute resolution professionals are required to assess for the presence of family violence.  In some cases where there is a history or risk of violence, it may be necessary for a judge to make the decisions about parenting arrangements.

When parents cannot come to an agreement on their own, they may get help from trained professionals, such as private family mediators, family justice counsellors or lawyers, to help them settle family issues. Parenting coordinators can assist parents who continue to have problems making decisions together after there is an agreement or court order in place.

If it is not possible to reach an agreement the parents may have to go to court.

After you have separated from the other parent, you continue to have responsibilities and obligations towards your children. 

You may be trying to keep things like they were before the separation, or protecting what you feel are your rights as a parent.  In trying to work through these parenting issues, the best interests of the children need to be the only consideration. This is also the focus if you go to court - the judge will only consider what arrangements are in the best interests of your children.

I will need to know what plans both parents have for their children, rather than how each parent feels about the other parent. The court is not the place to work through the parents' emotions.

Your children are experiencing a real sense of loss and they need as much reassurance and support as possible during the emotional troubles of separation.

You are the experts when it comes to your children. You have the information to make decisions that are best for them. However, should you find yourself in court, here are the things the court will consider when making decisions about the best interests of your children.

The BC Family Law Act lists these factors for the parties and the court to look at when considering the best interests of the child:

  1. The child’s health and emotional well-being;
  2. The views of the child, unless it would be inappropriate to consider them;
  3. The nature and strength of relationships between the child and other significant people in the child’s life;
  4. The history of the child’s care;
  5. The child’s need for stability, given their age and stage of development;
  6. The ability of each person who has guardianship, parental responsibilities, parenting time or contact, to exercise their responsibilities;
  7. The impact of any family violence on the child’s safety, security or well-being;
  8. Whether the actions of a person responsible for family violence indicate the person is unable to care for the child or meet the child’s needs;
  9. The appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child; and
  10. Any civil or criminal proceeding relevant to the child’s safety, security or well-being.

If you need to make application to the court, you will have to decide what court is best suited or required to resolve your issues: the BC Provincial Court (often called "Family Court"), or the BC Supreme Court.

Both the BC Provincial Court and Supreme Court grant orders for:

  • Guardianship of children
  • Parenting arrangements, including parental responsibilities and parenting time
  • Contact
  • Child support
  • Spousal support and
  • Protection orders

We will look at these terms later in the video.

Only the Supreme Court can grant a divorce and decide property issues.

Litigation can be costly, both financially and emotionally.

In the Provincial Court there are no court fees but you will have to pay for legal fees if you are represented by a lawyer.

In the Supreme Court you may be responsible for court fees in addition to legal fees. Long legal disputes can result in high costs.

There are a number of legal issues concerning the parenting of children that often need to be worked out when parents separate.

When a family is living together, the parents share the responsibilities for parenting their children. They are jointly responsible for providing food, clothing, shelter and guidance. They are also responsible for ensuring the safety of their children.

The Divorce Act uses terms like ‘custody’, and ‘access’ to describe parenting responsibilities. The BC Family Law Act started in 2013. It uses different terms explained in this video. If you are dealing with children’s issues under the Divorce Act, talk to a family dispute resolution professional about the appropriate terms for that Act.

Under the Family Law Act, ‘guardianship’ means responsibility for caring for and making decisions about your children. ‘Parental responsibilities’ describe the specific responsibilities guardians have towards a child.

Each parent who has lived with or regularly cared for their child is generally the child’s guardian. Guardians are responsible for their children’s care and upbringing. Only a guardian may have parental responsibilities and parenting time. Non-parents may become guardians, but only by court order. [6:12]

 ‘Parenting arrangements’ describes the guardians’ parental responsibilities and parenting time that have been put into place by either agreement of the parties or court order [6:18]

Parental responsibilities include:

  • Making day-to-day decisions affecting the child and having day-to-day care of the child;
  • Deciding where the child will live;
  • Deciding whom the child will associate with;
  • Making decisions about the child’s education and extracurricular activities;
  • Making decisions about the child’s cultural, linguistic, religious and spiritual upbringing, including the child’s aboriginal identity;
  • Consent to medical, dental and other health-related treatments for the child;
  • Applying for passports, licenses, benefits and other things for the child;
  • Giving, refusing or withdrawing consents for the child when a consent is required
  • Receiving notices about the child;
  • Requesting and receiving health, education or other information about the child
  • Protecting the child’s legal and financial interests;
  • Any other responsibilities needed to nurture the child’s development.

Guardians may share these responsibilities, or the responsibilities may be allocated among the guardians.

Parenting time is the time a child is with a guardian. ‘Contact’ means a child’s contact with a person who is not their guardian, including spending time with them or having some other form of contact such as telephone or video calling. 

The terms - guardianship, parental responsibilities, parenting time and contact - are often used by parents, lawyers, mediators and the court. You should have a general understanding about what each term means.

Overall, the terms are used to describe who is going to be responsible for what decisions concerning the children and how much time they are going to spend with each parent. In other words, the terms are used to describe how your children's daily lives will be structured.

An important decision parents need to consider is how the children will be financially supported. Parents have a legal responsibility to financially support their children, whether they live together or not. [7:06]

Canada’s child support laws are based on the principle that even though parents have separated or divorced, children should continue to benefit from the financial support of both parents. The federal government created the Child Support Guidelines to help parents figure out what a fair amount of child support should be. The Child Support Guidelines will be explained later in the Parenting After Separation session.

Upon separation or divorce, one parent may have to pay financial support to the other.

This is called "spousal support". Spousal support is different than child support and it has different rules and methods for its calculation. Legal advice on this matter is recommended.

The Family Law Act states that spouses are equally entitled to family property and equally responsible for family debt.

Deciding how to divide the family debt and family property – including the family home, pension benefits, investments or a business – can be difficult.

On complex issues such as these, it is a good idea to get legal advice from a lawyer. If you are not sure how to access legal resources in your community, contact a local Family Justice Centre for a referral.

Although you do not need a lawyer to separate or get a divorce, you may wish to get legal advice, especially if you don't know your rights and responsibilities, or if you think the property or other issues are complicated.

Be sure to get whatever information you need to be able to make informed decisions.

If you and your former partner are able to agree on your parenting plan and other financial matters in the best interests of the children, the arrangement can be formalized in a written agreement. Either parent may file the agreement with the court. Filing a written agreement can be helpful if there are disagreements later.

If parents find the agreement they have made is no longer appropriate, they can change it or they can request the court to review it and change it.

If parents agree to change their agreement, they should make a new agreement or change the consent order if there is one. A judge will only change an order if the parenting arrangement is in the best interests of the children.

The parent can settle all issues – such as parenting arrangements, support and property division – by agreement, but if they wish to obtain a divorce, they must apply to the Supreme Court. There are different grounds for applying for a divorce. The most common ground is that the parties have been separated for at least a year.

In both the Provincial Court and the Supreme Court, there are specific procedures for meetings that involve the judge, the parents and their lawyers. The purpose of these meetings is to discuss the issues and settle some or all of the issues without having to proceed to a trial.

Parents are encouraged to settle their differences when they separate, without going to court. Parents can reach agreement themselves, or get help from professionals trained in dispute resolution, such as family justice counsellors, private family mediators, and lawyers who practice collaborative family law.

Sometimes a professional mediator can help parents reach agreement on issues such as guardianship, parenting arrangements, support and the division of property.

A mediator does not make decisions or give legal advice. A mediator is a neutral professional who provides a safe environment for you and your former partner to meet.

The mediator helps define the issues you need to resolve, keeps the discussions on track and helps you develop a working relationship and improve communication with the other parent.

Some mediators, including Family Justice Counsellors, are also specially trained to bring your children’s views into the mediation process.

Another approach—other than mediation—is called "collaborative law".

In collaborative law, you and your lawyer, and your former spouse and his or her lawyer, make a formal commitment to settle disagreements without going to court.

Sometimes other professionals such as psychologists can assist as well. Meetings are held in an atmosphere of trust and collaboration.

Collaborative law can be less expensive and quicker than going to court. The process encourages parents to work together to resolve all issues, particularly if you have children.

Collaborative law allows you to keep more control over what happens to you and your family. What is important in collaborative law is that your lawyer is trained to protect your interests and to work collaboratively with other lawyers.

Some parents who have separated continue to be in conflict with each other, even after parenting arrangements have been set out in an agreement or court order.  These parents may agree, or the court may order them to hire a parenting coordinator.

Parenting coordinators can help parents communicate and settle conflicts with each other. A parenting coordinator may act as a neutral decision-maker for settling day-to-day parenting conflicts, which can minimize further conflict and additional appearances in court.   

The decisions made by parenting coordinators are binding on the parents, and they can be enforced like a court order if they are filed in the court. 

Remember, ending your relationship with your former partner does not change the responsibilities you have regarding your children.

Parents have many options available to ensure that just and fair arrangements are made and that their children are properly cared for.

Also remember, if you have to apply to the court, this does not mean that you are locked into the court process. You and the other parent can still reach agreement and settle out of court. You should consider what the best options are for you and your children.