This question stands for not only that issue but others as well. Where will the children live, who will be able to make decisions for them, who gets to spend holidays with them, will my extended family still be able to spend time with them, will they be able to continue to be involved in their extra-curricular activities and so on. Essentially, what happens with the kids on separation?
Section 37 of the Family Law Act sets out that in making an order regarding parenting time or parenting decisions, the parties and the court must consider the best interests of the child only. There are a list of specified factors under that section that the court is to refer to, including:
- the child’s health and emotional well-being;
- the child’s views, unless it would be inappropriate to consider them;
- the nature and strength of the relationships between the child and significant persons in the child’s life;
- the history of the child’s care;
- the child’s need for stability, given the child’s age and stage of development;
- the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
- the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
- whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
- the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
- any civil or criminal proceeding relevant to the child’s safety, security or well-being.
Disagreements over children often spill into court, but in many cases unnecessarily. On separation many parents have fixed ideas about the right parenting regime, the right parenting approach and how much time the children should or should not spend with the other spouse. These are issues that much research has gone into and with some help from registered clinical counsellors or through mediation or negotiation they can often be solved. See here the risks of unnecessarily inflaming your family law dispute, which are significantly heightened if you have children.
Unfortunately it takes two to agree to negotiate or collaborate or compromise. If one parent is being patently unreasonable and won’t listen to reason then the other parent either has the option of capitulating or pushing back, often through court. Where one parent is being so unreasonable often a (relatively) quick interim application can resolve this and break the deadlock but it runs the risk of inflaming the file and sending it down a tit-for-tat route or escalation.
In some cases it is necessary to move to court. If there is a risk posed to the child by the other parent, if the other parent is planning on moving out of the vicinity, or if the child’s well-being is otherwise at risk and you cannot negotiate with the other spouse, then you need to consider making an application to court.
Much rides on how you handle the issues pertaining to your children on separation. In BC there is a course available at no cost to the public, the Parenting After Separation course, which goes over tips and tricks of approaching parenting after family breakdown.
Many separated spouses fall into making negative comments about the other parent, taking out their heartbreak on them through being difficult on parenting time or being otherwise inflexible and unreasonable regarding parenting time. Children of parents that broke up are at greater risk of substance abuse, depression, suicide and problem behavior and children of high conflict family files are at a significantly higher risk.
In a perfect world parents are able to negotiate a parenting arrangement on separation, but that hinges on many things. If family violence is present, if a child is subject to abuse or if one parent is being unreasonable this may not be possible. Often spouses that have been able to get their way in the relationship push to do so on separation. It can be worth commencing an action in court to seek an order to let them know that they can no longer “rule the roost”, but beware of unnecessary escalation of the conflict.
If an agreement is reached it should be reduced either to writing or ensconced in a court order. In family law the courts consider the status quo, which is the way that things have played out in the past little while. The courts are reluctant to change things from the way they’ve been absent good reason as children often benefit from consistency. If you end up in a disagreement as to how much time the kids have spent with you and your spouse (which is not uncommon), then you are arguing over what the status quo was. That impacts child support and what regime should govern going forward, at least for the time being. A written agreement or court order clarifies this.
So how to you deal with what is to happen with the kids on separation, as with most things, it just depends. A teaspoon of tolerance paired with an ounce of compromise goes a long way in these things and stands to minimize the effect on your children but it has to be counterbalanced with the preparedness to act, quickly and decisively if your children are at risk. Help is out there if you need it but don’t access if unless you do.
Family Law Simplified 