Can I Stop My Ex From Seeing Our Child in British Columbia?

When you are afraid for your child, or simply exhausted by conflict, refusing the next handover can feel like the only option. The law gives you ways to raise safety concerns, but acting alone can backfire.

This article explains how British Columbia's Family Law Act treats guardianship and parenting time, the risks of withholding a child, the situations where a denial is not treated as wrongful, and the lawful steps open to you. If anyone is in immediate danger, contact police or emergency services first.

This article covers the law of British Columbia.

Why you generally cannot cut off the other parent

While parents live together and after they separate, each parent is a guardian of the child. Separation alone does not end guardianship. Unless an agreement or order says otherwise, each guardian may exercise all parental responsibilities after consulting the other guardians, unless consultation would be unreasonable or inappropriate.

Where parenting time has been allocated by an agreement or order, that is the time the child is with that guardian. The Act does not treat one arrangement as automatically right, since no particular arrangement is presumed to be in the child's best interests. That cuts both ways: the Act does not presume equal parenting time or joint or separate decision-making, and the starting point is that a guardian consults the other guardians before exercising parental responsibilities, unless consultation would be unreasonable or inappropriate.

There are exceptions. A parent who has never lived with the child is not a guardian unless an exception applies, such as a written agreement of all guardians or regularly caring for the child. A non-guardian parent can still have contact but has no parental responsibilities. If you are in that situation, a lawyer can help you work out where you stand.

The risks of withholding the child

If a person is entitled to parenting time or contact under an agreement or order and is denied it, they may apply to the court within 12 months after the denial. The court may order family dispute resolution, counselling, compensatory time, reimbursement of expenses, supervised transfers, security or reporting, and payment or a fine of up to $5,000.

Whether a denial was wrongful depends on the reasons for it, because the Act lists situations where a denial is not wrongful.

When a denial is not wrongful

The Act recognizes that sometimes holding back a child is reasonable. A denial is not wrongful in these situations:

• The guardian reasonably believed the child might suffer family violence, or that the other person was impaired by drugs or alcohol.
• The child was ill and a medical practitioner or nurse practitioner gave a written statement that the visit was inappropriate.
• The other person repeatedly failed to exercise their time in the previous 12 months without notice or excuse, or said in advance it would not be exercised.
• Other circumstances the court finds sufficient.

Whether your belief was reasonable is for a court to judge, so keep notes on exactly what led to your decision.

Lawful routes when safety is a concern

If you want the arrangement changed or limited, ask a court. A guardian may apply for orders on parenting responsibilities, parenting time and how the arrangement is carried out, and the court may require supervision of parenting time or transfers by a named person. An existing parenting order can be changed, suspended or terminated if the child's needs or circumstances have changed.

The court decides on the child's best interests only. An arrangement is not in the child's best interests unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. Family violence is defined broadly and includes physical, sexual, psychological and emotional abuse, and a child's exposure to it. The court considers how serious and recent it was and whether there is a pattern of coercive and controlling behaviour.

In Provincial Court, an application for a parenting order is made on Form 3 Application about a family law matter. In Supreme Court, a family case starts with Form F3 Notice of Family Claim. If you worry the other parent may take the child out of the province, a court can make orders to prevent removal.

What to do next

• Write down dates, events and what the child said or showed, and keep messages and any medical or school notes.
• Do not stop handovers without a clear, safety-based reason you could explain to a judge.
• Speak with a lawyer quickly about an application, interim supervision or a change to your order.
• In Provincial Court, plan for the Parenting After Separation course, which must generally be completed before the first court date unless exempt.
• Call police or emergency services if there is immediate danger.

Frequently asked questions