Family law in Canada uses a number of different terms to describe ex-spouses’ parenting arrangements. But what does it all mean? In this post, I explain various types of custody and parenting and whether there is any real difference between them.
Before I do, an important reminder: there are two main sets of laws that apply to parenting arrangements in British Columbia:
1. The Federal Divorce Act (DA), which applies only to married spouses.
2. The provincial Family Law Act (FLA), which applies to both married and unmarried spouses.
Why two? Under Canada’s Constitution, the federal and provincial governments have powers to make laws over certain areas. For example, the federal government can regulate marriage and divorce and the provincial government can regulate property rights. BC family law cases often involve both sets of laws since only the DA covers divorce and only the FLA addresses property division.
While both statutes deal with parenting, they each have their own lingo. With that in mind…
Divorce Act vs. Family Law Act
The DA uses the term “custody”, but doesn’t actually define what that word means. Canadian courts, however, have generally used custody to describe the full bundle of a parent’s rights and responsibilities towards their child, including physical control and the right to determine important matters about the child’s general well-being.
The FLA, on the other hand, does not use the term “custody”. Instead, it uses the terms “guardianship”, “parenting time” and “parental responsibilities”.
So, whereas we speak of “joint custody” under the DA, we use terms like “shared parenting” and “joint guardianship” for arrangements under the FLA.
Shared, joint, split
Let’s talk about what some of these terms actually mean, starting with joint custody and shared parenting.
In essence, they refer to the same thing: situations where both parents share parenting rights and responsibilities. Practically speaking, this means that parents will make important decisions – about, for example, a child’s schooling, religious upbringing and medical care - together.
It’s important to note that “joint custody” does not necessarily mean that the child will live with both parents half or even part of the time (although this is common), but rather that the parents are equal partners when it comes to making decisions that affect their child’s life. While this is a great arrangement for many families, it is not for everyone since shared parenting does require a level of cooperation between parents. "Shared parenting", on the other hand, does mean that the child lives with each parent at least 40% of the time.
Split custody (a term used only under the DA) describes a situation where the parents have more than one child together but each parent has custody of one or more of the children when the relationship ends. For example, in one split custody arrangement, the daughter might live with Mom and Mom makes decisions about her, while the son lives with Dad and Dad makes decisions about him.
The bottom line? There are many different parenting arrangements to choose from – the question is what is the best fit for your family.
One Last Thought
Each of the above parenting arrangements will lead to different child support obligations. To learn more about this, take a look at my recent blog post: “Child support when parenting is shared: who pays what?”.