The parenting issues are frequently the most emotionally charged issues to be resolved in a family law case.  Often the parties become ‘wrapped up’ in terminology, rather than examining the substance of the arrangements they are considering.

Generally, you may wish to think of ‘guardianship’ as representing the entire spectrum of rights and obligations that you have towards a child.  The concept of ‘custody’ represents only a subset of this much larger concept. There have been sweeping changes to both our federal and provincial legislation with respect to family law, which included removing the concepts of ‘custody’ and ‘access’ from the legislation.

It is generally convenient for the parties and for the child or children to live with one parent or the other.  That is, the child will spend more time at the residence of one parent than the other and could be said to ‘primarily reside’ there.  It is therefore common to see agreements or court orders that provide for the parents to remains joint guardians of their children but the children will primarily reside with one parent.

Joint guardianship orders or agreements generally provide that regardless of where the child resides, the parents will continue to share information about the child with each other and will make joint decisions with respect to significant aspects of the child’s life.  This concept is often referred to as ‘joint parenting responsibilities’ so that both parents have involvement in making decisions with respect to their children. However, one of the parents may have the right to ultimately decide a parenting issue in absence of agreement and that would normally be the parent with whom the child primarily resides.  The other parent remains free to apply to the court for a review of the decision made by the other parent.

The following is taken from our Family Law Act and sets out some of the parenting responsibilities:

(a)   making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

(b)   making decisions respecting where the child will reside;

(c)   making decisions respecting the child’s education and participation in extracurricular activities, including the nature, extent and location;

(d)   making decisions respecting the child’s cultural, linguistic, religious and spiritual upbringing and heritage;

(e)  giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;

(f)    applying for a passport, license, permit, benefit, privilege or other things for the child;

(g)   giving, refusing or withdrawing consent for the child, if consent is required;

(h)   receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

(i)    requesting and receiving from third parties, health, education or other information respecting the child;

(j)    subject to any applicable provincial legislation,

(i) starting, defending, compromising or settling any proceeding relating to the child, and

(ii) identifying, advancing and protecting the child’s legal and financial interests;

(k)   exercising any other responsibilities reasonably necessary to nurture the child’s development.

In some cases it is appropriate for children to spend equal time with both parents. This would be referred to as ‘shared residency’ or simply ‘equal parenting time’. In some cases the week is divided equally or the children reside one week with one parent and then the next week with the other parent. This can be an ideal arrangement if both parties reside in the same community so that there is no disruption to the children’s schooling or activities.

Often if there is shared residency, the parenting responsibilities are equally shared and neither parent gets to make final decisions, so on all parenting issues they must be able to come to an agreement. Sometimes if guardians are unable to resolve the issue, the parties may be required to mediate the issue with a neutral professional and if the issue is still not resolved, then the matter is referred to the court for a determination.

Even if a child spends roughly equal time with each parent, there may be an obligation to pay some support for the child to the other parent if one parent has a greater income.  However, if the parents have similar income, then there would be no child support payable per se but the parents would have to share some of the expenses, such as medical and dental costs, daycare and extracurricular activities.