Written by Jeanine Ball
“Custody” is a term that is frequently used when people are talking about matters involving arrangements for children upon separation or Divorce. In BC, the term that is actually more often used in family law orders is “guardianship”. So what is the difference?
Custody is a term that is used only under the federal Divorce Act, and so it can only be used in a Divorce proceeding in Supreme Court. The term is defined in the Divorce Act as “includes care, upbringing and any other incident of custody”. It comes from a traditional concept of having care and control over the upbringing of a child. Orders will say that a parent has either “joint” custody (generally with the other parent) or “sole” custody, meaning they have care, control and decision making power over the child. Time with a child under the Divorce Act is referred to as “access”.
More commonly today, orders are made in both Supreme and Provincial Court under the BC Family Law Act. The Family Law Act uses the concept of guardianship instead of custody. Parents are presumed to be guardians, provided they have lived with the child at some point since the child’s birth. A parent or other adult caregiver who is not presumed to be a guardian may apply to be appointed as a guardian. Only guardians have parenting time and parenting responsibilities with respect to a child. Parenting responsibilities include a variety of decision-making responsibilities, and the right to deal with third parties who are involved with a child such as teachers or doctors. A guardian may have all, some or none of these responsibilities.
Custody and access are terms that will no longer be used in family law matters going forward. The Divorce Act has recently been amended and a new version will be coming into force in the near future. The new Divorce Act uses language and concepts that are similar to the BC Family Law Act such as parenting time, the allocation of decision making powers, and entitlement to information from third parties.
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