How Family Violence Affects Parenting Time in British Columbia

If you have experienced family violence, you may worry that a court will still expect you to share parenting time as if nothing happened. If you have been accused of family violence, you may wonder what that means for time with your child. Both worries are common after separation.

In British Columbia, the Family Law Act tells courts how to treat family violence when they make decisions about children. This article explains the main rules in plain language. It is general information, and your situation may turn on details a lawyer can review.

This article covers the law of British Columbia.

The starting point: the child's best interests only

When parents and the court make decisions about a child, they must consider the best interests of the child only. That means the question is not what is fair to each parent. It is what is best for the child.

One of the required factors is the impact of any family violence on the child's safety, security or well-being, whether or not the violence was directed at the child. So violence between the adults can matter even if the child was never targeted.

What counts as family violence, and how the court looks at it

Under the Family Law Act, family violence includes physical abuse of a family member, including forced confinement or deprivation of the necessities of life, with or without an intent to harm. It does not include reasonable force used to protect yourself or others from harm. It also includes sexual abuse and attempts to physically or sexually abuse a family member.

Psychological or emotional abuse counts too, including intimidation, harassment, coercion or threats (including threats respecting other persons, pets or property), stalking or following, and intentional damage to property. Unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy are also family violence.

When the court assesses family violence, it considers a set list of matters. These include:

• How serious and how recent the violence was.
• How frequent it was.
• Whether psychological or emotional abuse forms a pattern of coercive control.
• Whether it was directed at the child or the child was exposed to it.
• The harm to the child's safety and well-being.
• Steps taken to prevent further violence.

Direct or indirect exposure to family violence is itself family violence when the person affected is a child.

Safety comes first in any arrangement

An agreement or order is not in the child's best interests unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety. This applies to agreements between parents too, not only to court orders.

No parenting arrangement is presumed to be in a child's best interests, and that includes equal parenting time. The court can also require that parenting time be supervised by a named person, which may be used where family violence is a concern. Whether supervision or another approach fits depends on the facts.

Protection orders and other orders

A protection order is a separate tool aimed at safety. A court may make one if it finds family violence is likely to occur and the other person is an at-risk family member. If the at-risk person is a child, the court must also consider whether the child may be exposed to family violence without an order, and whether an order should also be made about the child.

An application may be made by the at-risk family member, by another person on their behalf, or by the court on its own initiative, and no other family proceeding is required first. An application may also be made without notice to the other person. If that happens, the person the order is made against can apply to set it aside, change it or end it.

Terms can include restraining contact and communication, restricting attendance at specified places, and other terms the court considers necessary. Unless the court provides otherwise, a protection order expires one year after the date it is made.

These orders are only made against a family member. Dating partners, co-workers or strangers who are not a family member under the Act cannot get a Family Law Act protection order, although a criminal peace bond under Criminal Code s 810 can be used against anyone.

If a protection order conflicts with another order made under the Act, that other order is suspended to the extent of the conflict until it is varied or the protection order ends. This can affect how a parenting schedule works in practice.

What to do next

• Write down what happened, with dates, in a calm and factual way.
• Keep any messages, photos, medical records or police file numbers.
• Note how the child has been affected or exposed.
• If you are accused, avoid contact that could breach an order, and respond to allegations with facts.
• Speak with a lawyer about the parenting arrangement and any protection order that fits your situation.

Frequently asked questions