There are so many different legal terms used when discussing parenting arrangements and it can become very confusing. The following definitions may help:
Guardianship: A guardian has the legal rights of a parent. Parents are generally guardians and courts rarely terminate a parent’s guardianship unless that parent has never cared for the child and is unlikely to care for the child in the future. Biological parents are at liberty to reach agreements about whether one or both of the parents are guardians, but they are not at liberty to make an agreement about a third party being a guardian, except in the following circumstances:
(a) by adoption, under the Adoption Act;
(b) temporary or permanent guardianship orders made in child protection cases, pursuant to the Child, Family and Community Service Act;
(c) the appointment of a standby guardian in a will by a guardian who has passed away or is facing terminal illness or permanent mental incapacity (see Sections 53 – 57 of the BC Family Law Act;
For example, if you are separating from your spouse, you cannot include a clause in your Separation Agreement that your former spouse is a guardian of your children from a previous relationship. A step-parent cannot become a guardian through a written agreement. The step-parent would need to adopt the child or obtain an order for guardianship.
Only a guardian can have “parental responsibilities” or “parenting time” with a child. All other non-guardians (such as grandparents and step-parents) can have “contact” with the child.
Parenting Time: Parents generally have parenting time pursuant to a schedule after separation. If both parents have the child(ren) at least 40% of the time (at least 3 days per week, 12 days per month, or 146 days per year), then they have a shared parenting arrangement. If one of the parents has the child(ren) more than 60% of the time, then that parent has “primary care” of the child(ren).
Custody: Although some lawyers and judges continue to use the word “custody,” the new Divorce Act has removed this term from the legislation. When one thinks of “custody,” many people immediately think about a “custody battle” or “winning custody.” The term “custody” was removed from the Divorce Act to emphasize the best interests of children over the “battle” than many parents have over them. The Divorce Act now features concepts and words that focus on relationships with children, such as parenting time, decision-making responsibility and contact. The term “parenting order” replaces “custody order” throughout the Divorce Act.
Parental Responsibilities under the BC Family Law Act:
Parental responsibilities refer to a parent’s ability to make parental decisions. The types of decisions parents can make are listed under s. 41 of the Family Law Act. A court may order: (1) shared parental responsibilities; (2) that one of the parents has sole parental responsibilities; (3) that the parents have shared parental responsibilities but one of the parents has the final say in the event of a dispute; or (4) that the parents must retain a parenting coordinator to resolve disputes regarding parental decisions.
Decision-making Under the Divorce Act (Canada):
This is essentially the same thing as parental responsibilities. Decision-making responsibilities refer to a parent’s authority and responsibility for making significant decisions about a child’s well-being, including in decisions related to the child’s health, education, culture, language, religion and spirituality, and significant extra-curricular activities.