Does BC Have a Default 50/50 Parenting Schedule After Separation?

If you and the other parent are separating, you may have heard that the law gives each parent half the time. Or you may fear that it does not. Either way, it helps to know what the law in British Columbia actually says before you negotiate a schedule.

The short answer is that there is no automatic 50/50 rule. This article explains what the Family Law Act says instead, how schedules are set, and how to get a plan in place.

This article covers the law of British Columbia.

No presumption of equal time

Section 40(4) of the Family Law Act says no particular parenting arrangement is presumed to be in the child's best interests. The Act also does not presume equal allocation of parental responsibilities, equal parenting time, or joint or separate decision-making.

That cuts both ways. Neither parent can rely on a 50/50 starting point, or on any other particular arrangement as the starting point. Each case is decided on the child's best interests.

Guardianship comes first

Under the Act, the older words custody and access were replaced by guardianship, parental responsibilities, parenting time and contact. While parents live together and after they separate, each parent is a guardian, so separation alone does not end guardianship.

There are exceptions. An agreement or order made after separation, or when parents are about to separate, can provide that a parent is not a guardian. A parent who has never lived with the child is not a guardian unless an exception applies.

Only a guardian may have parental responsibilities and parenting time. 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.

What the schedule is based on

When making an agreement or order about guardianship, parenting arrangements or contact, the parties and the court must consider the best interests of the child only. The factors include the child's health and emotional well-being, the child's views unless inappropriate to consider them, the child's need for stability, the history of the child's care, and the impact of family violence.

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. Equal time can be the result in a given family, but it is a result of those factors, not a starting rule.

Family violence is not limited to physical harm. It includes physical abuse, sexual abuse, and psychological or emotional abuse such as intimidation, harassment, coercion, threats or stalking, as well as a child's direct or indirect exposure to it. When the court assesses it, it looks at the nature and seriousness, how recently and how frequently it occurred, and the harm to the child.

A court may consider a person's conduct only if it substantially affects one of the best interests factors, and only to the extent of that effect.

Ways to set a schedule

Guardians may make an agreement about parenting arrangements, including parenting time and how disputes are resolved. A parenting agreement is binding only if made after separation, or when the parties are about to separate and it is meant to take effect on separation. A written agreement filed in court is enforceable as if it were a court order.

If you cannot agree, a guardian can apply for an order on parental responsibilities and parenting time. The court must set aside or replace all or part of a parenting agreement that is not in the child's best interests. A parenting order can later be changed if there has been a change in the child's needs or circumstances.

In Provincial Court, you apply for a parenting order by filing Form 3 'Application about a family law matter'. In Supreme Court, a family case starts with Form F3 Notice of Family Claim under the Supreme Court Family Rules. Which court suits your situation depends on the facts, so it is worth confirming with a lawyer.

What to do next

• Write down the child's routines, school, health needs and who has done the day-to-day care.
• Think about a schedule that fits the child's age and stability, not a fixed number of days.
• Note any safety concerns, including family violence, and keep records.
• In Provincial Court, plan to take the Parenting After Separation course unless you are exempt.
• Speak with a family lawyer before signing an agreement or filing an application.

Frequently asked questions