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Parenting/Custody Lawyers in Winnipeg
The Fishman Beley Family Law Primer - Family Law 101
The topics we deal with here are:
THE NEW LANGUAGE OF PARENTING
The language the law now uses when dealing with the care and upbringing of children has been changed in federal and provincial statutes. We now refer to “parenting” or “parenting time” and no longer use the language of “custody” and “care and control.”
In this section of our Primer, we at Fishman Beley try to simplify and explain the current state of the law of parenting and decision-making. We have been dealing with the care and support of children for decades and want to ensure you have all the information you need.
Parenting cases are amongst the most hard-fought in family litigation, and it is important to encourage a sensitive and sound approach to the issues. All decisions and claims should be focussed on “the best interests of the child,” which expression is defined extensively in the Divorce Act and The Family Law Act (Manitoba).
The law encourages the use of alternate dispute resolution methods and puts an onus on the parties and their lawyers to encourage those approaches. The court has the power to order dispute resolution processes.
The amendments to the Divorce Act and the enactment of The Family Law Act put an emphasis on respecting the court’s role where there has been “family violence.” This includes the duty to take into account such behaviour as “coercive and controlling behaviour,” violence to a child or exposure of the child to violence.
The Divorce Act and The Family Law Act stipulate that a child should have as much time with each parent as is consistent with the child’s best interests.
BEST INTERESTS OF THE CHILD
When the court makes a determination of the parenting of children it is governed by answering the test question: "What is in the best interests of the child?” Statutory guidance as to the meaning of this test can be found in The Family Law Act and the Divorce Act, as well as the thousands of reported cases interpreting those guidelines in the light of the myriad array of facts to be found in them.
“Best interests of a child” is a flexible concept as notions of a child’s views, ideas, and social mores change over time. An appreciation of the test will include considerations of the “age and stage” of the child, the past history of care, a recognition of the need for stability in the child's life, the parent's respective parenting/custody plans, the willingness of the parents to involve the other in the child’s life, the specific needs of the child, the drive to keep children together, and may also include taking account of financial, moral or religious issues.
However, each parenting or custody case is different from the other, hence predicting outcomes is not only difficult but practically impossible. Sometimes, the reality is that the court is required to choose “the least detrimental alternative.”
Manitoba’s newly enacted The Family Law Act replaces The Family Maintenance Act. It requires the court to consider the best interests of the child and puts a strong focus on the effects of family violence.
The Divorce Act now stipulates that the primary consideration in parenting cases shall be the best interests test, the “child’s safety, security and well-being,” and further that parents must now conduct themselves in relation to their children in accordance with the children’s best interest and to protect the child from conflict arising from the proceedings. These amendments promote sensitivity toward the needs and feelings of the child rather than the parent’s dispute.
The Divorce Act articulates a list of non-exhaustive factors which will inform the court’s deliberations of what is in the best interests of the child. This list is quite similar to The Family Law Act provisions.
CUSTODY/PARENTING DURING THE RELATIONSHIP
What used to be called “joint custody” is now known as “joint parenting.” Each parent has all the rights and obligations respecting their children, subject only to the oversight of the court, child and family services agencies in the case of abuse or neglect, or the provisions of the criminal law.
In theory, the parents of children have equal rights to make decisions for or about their children, and usually, either parent can act without the consent or necessary authority of the other in day-to-day situations.
Parenting a child while the parents are together is typically a fluid and consensual process, although certainly, parents don’t always agree. How they resolve the issues that arise is a function of their family dynamic, and where disagreement cannot be resolved can lead to a breakup.
Parents must protect their children, provide for the necessities of life, their health and welfare, and ensure that they are protected.
CUSTODY/PARENTING AFTER SEPARATION
Litigation over the parenting of children, “custody battles”, can be about a multitude of things ranging from profound and intractable differences that can go to the core of human values. Sometimes the parents are fighting about terminology or mundane trivialities. At Fishman Beley, we aim to focus on practical reality that nourishes the best interests of the children involved.
Upon separation, unless the parties agree otherwise that the court, on application, makes an order, they continue to enjoy and have the rights and responsibilities of joint parenting.
If the parents have never lived together, any children will remain the sole parenting responsibility of the parent with whom they have lived since birth.
Upon separation, the first task is for the parents to fashion a parenting regime if they can. If they cannot agree or need help in deciding how they will parent after separation, they are encouraged to use a Parenting Plan, of which there are multiple examples on the internet to use as a starting point. Go to our section, Parenting Plans, for some precedents.
If the parents cannot agree upon their parenting plan after resorting to research, mediation or other resources, they may find themselves in court. The lawyers at Fishman Beley are experienced in parenting/custody cases.
The court can make primary parenting orders, specified orders or supervised orders for parenting and will address the questions of decision-making and mobility.
RIGHT TO INFORMATION
Usually, both parents have the right to information about their children from the other parent or third parties unless the court orders otherwise. We recommend that parents ensure that the school, daycare or other service providers for their children are aware of the parental separation and that they are instructed to provide duplicate notices and report directly to them.
The right to information is not a decision-making right.
DECISION MAKING
An important factor in any parenting plan or decision of a court or arbitrator is often who has the right to make major decisions about or for a child. Major decisions are seen as medical/health matters, schooling, sometimes activities or other choices of an important nature. Typically, decisions are the subject of notice and consent by the other parent unless the court gives one or the other exclusive authority.
While the child is in the parenting of one parent, that parent has the exclusive right to make day-to-day decisions affecting the child during that time unless the court orders otherwise.
MOBILITY/RELOCATION ISSUES
A change in a child’s residence or their parents that will likely impact the child’s relationship with a parent, guardian or person with whom the child has contact is now automatically the subject of the law.
Subject to a court order, a parent who intends to relocate must give 60 days' notice, with specified information, to the other parents, guardians, persons with contact orders in their favour, and those standing in the place of a parent who has parental responsibilities.
If no objection is raised, the parent may complete the relocation. If an objection is raised, the court can make an appropriate order upon considering the reason for the move, the impact on the child, the time and involvement of the affected persons, the reasonableness of proposed changes in parenting arrangements and other factors. The person who intends to relocate must demonstrate that it is in the child’s best interests. In the originating documents for litigation, their Petitions and Answers, the parties must certify that they will honour their obligations to give notice of relocation with children.
CONTACT ORDERS
Non-parents may apply for a Contact Order, which can give them the right to have the child spend time with them, for that person to be able to attend specified activities of the child, to give gifts, communicate with each other, receive pictures and to be notified of moves and possibly have their consent required when a child is being removed from a geographic area.
PARENTING PLANS
The Divorce Act and The Family Law Act put new emphasis on encouraging the parties to negotiate their Parenting Plans, which can be incorporated into their Parenting Orders. Parenting Plans can be comprehensive and detailed. At Fishman Beley, we can help you construct your personalized Parenting Plan. Parenting Plans will often include provisions for the following:
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the actual parenting time schedule – this might include in addition to a description, the incorporation of a calendar as the visual is often helpful
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the sharing of holidays, such as religious days, statutory holidays, long weekends, school holidays and personal milestone days
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travel and relocation protocols, including notice, itineraries, travel authorizations and passports
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provision for third-party contact
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communication protocols (email, texts, phone calls, social media) between parents and between parents and children.
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means of making changes to the schedule
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general parenting guidelines, for e.g. diet, exposure to third parties, environmental considerations, discipline, bedtimes, third parties, cultural and religious considerations, grooming decisions and the child’s use of social media and the internet
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child care – right of first option if one parent is not available during their time
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how and where exchanges will work – authorized persons to receive or pick-up
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medical and health plan information and coverage issues – claims coordination –protocols for choosing providers – how emergencies will be dealt with
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educational issues, including choice of school, sharing of responsibilities and information, parental involvement and sharing of expenses – provision for post-secondary education
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activities – choices and limitations – parental involvement – cost sharing
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sharing of the child’s personal property between homes
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changes and modifications to the plan – provisions for dispute resolution – mediation and arbitration
The forgoing is a simple list which is by no means exhaustive. There are hundreds of sample parenting plans and templates on the internet. The Department of Justice has an online Parenting Plan Tool which is a good start.
The trick to a good Parenting Plan is to form a balance between the needs of the family, as a whole, and abiding by the laws. The lawyers at Fishman Beley have the experience to help you with your parenting plan.
ASSESSMENTS AND CONSULTATIONS
Contested parenting/custody cases can be lengthy, bitter and expensive, so the courts and the governing legislation attempt to encourage and require the parties and lawyers to undertake serious efforts to explore alternate means of Dispute Resolution.
Children are not welcome witnesses in court, nor is the notion of the judge speaking directly with the child in their chambers something that is generally not done in this jurisdiction. The court will usually prohibit a minor child from testifying, notwithstanding how adamant a parent might be about it. There is merit, however, to hear the child’s voice and to have unbiased, objective evidence of the child’s well-being. One of the ways in which the child’s voice gets to be heard is through an assessment or Voice of the Child Report through the Family Support Service, which can be ordered by the court.
Assessments are typically performed by professionals in social work or psychology with the goal of providing expert evidence to the court about the children’s best interests, the capacity of the parents in their parenting role and what parenting time arrangements might be seen as optimum.
Typically, assessors will familiarize themselves with the court file, spend time with the parents, see the children in the care of each parent and – subject to the child’s age and maturity – may interview the child on their own.
Usually, each parent and the children will be observed in their home. Some assessors will use psychometric testing as an aid, and most will speak to a limited selection of collateral third parties and other professionals involved in the child’s life, usually as nominated by the parties.
After the interviews and data-gathering process is completed, a report presenting the findings and recommendations is prepared. These sometimes run 50 to 100 pages or more. The maker of the report can be cross-examined at the trial. It is important to note that the court is not bound to follow the recommendations contained in an assessment.
THE FAMILY SUPPORT SERVICE ASSESSMENTS
Assessments are available at no cost to the parties, on court order, when undertaken by the Family Conciliation Service, now known as The Family Support Service, which is connected to the court. It currently takes about 6 to 9 months from the time the assessment is ready to be undertaken – there is usually a lengthy wait list – until completion.
Motions for the appointment of a family evaluator are now made to an associate judge (formerly called a “Master”) of the court. The Associate Judge will need to be convinced that an assessment is required. While the appointment of The Family Support Service is usually general in nature, the Associate Judge can order a more specific type of assessment.
The court will sometimes order a "focused assessment" to deal with one or more discrete issues, such as schooling, or religion, or a medical issue.
Where there is a need to determine the child's wishes, the court can order a Brief Consultation, also known as a "Voice of the Child" report. These kinds of reports usually involve a meeting with the parents and a meeting with the child on their own and will hopefully be completed within 30 days.
This form of assessment is usually limited to office interviews and to older children, typically at least 12 years old. These reports can be useful when the parties are unable to agree upon what the child is actually saying about his or her preferred living arrangements.
Contrary to popular myth, there is no rule that says a 12-year-old child has the right to decide where he or she will live.
PRIVATE ASSESSMENTS
The parties may wish to hire a private professional, such as a social worker or psychologist, to perform the assessment, and one or both of the parties will be responsible for the costs, either by agreement or by court order.
These private assessments, while having the advantage of giving the parties greater control over the process, might be quicker but can cost thousands of dollars depending on the assessor and the work involved. Some private assessors will have psychometric testing of the parties or children as part of their process.
PARENT EDUCATION - FOR THE SAKE OF THE CHILDREN
Where there is a dispute about parenting/custody, the court requires that the parties complete the parent information program called For the Sake of the Children. A completion certificate will be filed in court.
This program is run by the Family Support Service attached to the court. These are the same personnel who perform court-ordered assessments and brief consultations.
The program IS now offered online and can be accessed here.
The program outlines good parenting practices on separation and gives the parties guidance on what is seen as typical or advisable for children of various ages and stages.