Can Parents Share Guardianship but Split Decisions in BC?

If you and the other parent are both guardians, you may wonder whether you have to decide everything together. Many families prefer a middle path, where some choices are shared and others are handled by one person.

In British Columbia the law allows both approaches. This article explains the default rule, how decisions on things like health care, schooling and religion can be divided, and what you can do if you reach a deadlock.

This article covers the law of British Columbia.

Guardianship and parental responsibilities are different things

Each parent is a guardian of the child while living together and after separating, and separation alone does not end guardianship. Guardianship is the status. Parental responsibilities are the decision-making powers that come with it, and only a guardian may have them.

The Family Law Act lists these responsibilities, including day-to-day decisions and care, where the child lives, education and activities, cultural and religious upbringing, health-care consent (subject to Infants Act s. 17), and applying for passports and benefits.

The default rule: consult, then act

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.

There is also no built-in 50/50 rule. The Act does not presume equal parental responsibilities, equal parenting time, or joint or separate decision-making.

Ways to share or divide decisions

Guardians can share all parental responsibilities or divide them up. Responsibilities can be allocated to certain guardians only, and they can be exercised separately or together. Guardians may put this in a parenting agreement, which can cover allocation of responsibilities, parenting time, how it is carried out and how disputes are resolved.

• Shared: both guardians decide together on a topic such as schooling.
• Divided: one guardian makes decisions about a topic such as health care, and the other about another topic such as religious upbringing.
• Day to day: during parenting time, the guardian may make day-to-day decisions and have day-to-day care, control and supervision unless the agreement or order says otherwise.

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.

What happens if you cannot agree

A guardian can apply to court for an order on the allocation of parental responsibilities, parenting time, implementation and dispute resolution. An order must not be made if the guardians are the child's parents and are not separated.

The court decides on the child's best interests only. It looks at factors such as the child's health and emotional well-being, the child's views unless inappropriate, the history of care, the child's need for stability, and whether cooperation between guardians is appropriate.

• Dispute resolution can be written into an agreement or order.
• A parenting coordinator can act under a written agreement or court order to implement parenting arrangements, and may make determinations only on prescribed matters within set limits.
• A court can change or set aside a coordinator's determination if the coordinator acted outside their authority or made an error of law or of mixed law and fact.

If informal arrangements are settled, a guardian must not change them without consulting the other guardians unless consultation is unreasonable or inappropriate. A parenting order can be changed, suspended or terminated if the child's needs or circumstances have changed.

What to do next

• List the decisions that matter most to you: health care, school, religion, activities, travel.
• Decide which ones you could share and which one guardian could handle.
• Put any agreement in writing and consider having it filed in court.
• Keep a record of your consultations with the other guardian.
• Speak with a family lawyer before applying to court or signing an agreement.

If you go to court in Provincial Court, you file Form 3 Application about a family law matter. In Supreme Court, a case starts with Form F3 Notice of Family Claim. A lawyer can explain which route fits your situation.

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