Family Violence and Parenting Time in British Columbia

If you have experienced family violence, you may worry that a court will expect you to share parenting time and decisions as if nothing happened. You may also wonder whether what happened to you, or what your child saw, will really count.

In British Columbia, the Family Law Act treats a child's safety as central. This article explains how family violence fits into the best-interests decision, what protections exist, and what to do next. It is general information, not advice for your situation.

This article covers the law of British Columbia.

How the best-interests decision works

When parents or guardians make an agreement, or a court makes an order, about guardianship, parenting arrangements or contact, they must consider the best interests of the child only. That means the focus is on the child, not on which adult seems more deserving.

An agreement or order is not in a child's best interests unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. The list of factors also includes the child's health and emotional well-being, the child's need for stability, the history of the child's care, and whether cooperation between guardians is appropriate.

A court may consider a person's conduct only if it substantially affects one of those factors, and only to the extent of that effect. So the question is how behaviour affects the child, not simply whether someone behaved badly.

What counts as family violence

The Act's definition goes well beyond physical assault. With or without intent to harm, it includes physical abuse (including forced confinement), sexual abuse, attempts at either, and psychological or emotional abuse such as intimidation, harassment, coercion, threats, stalking, unreasonable restrictions on financial or personal autonomy, and intentional property damage. It also includes a child's direct or indirect exposure to family violence.

When a court assesses family violence, it must consider several things:

• The nature and seriousness of the violence.
• How recently and how frequently it occurred.
• Whether psychological or emotional abuse forms a pattern of coercive and controlling behaviour.
• Whether it was directed at the child or the child was exposed to it, and the harm to the child.
• Steps taken to prevent further violence, and any other relevant matter.

The court also looks at the impact of family violence on the child's safety, security or well-being, whether the violent person can care for the child, and any civil or criminal proceeding relevant to the child's safety.

Effect on parenting time and decision-making

There is no automatic 50/50 rule. No particular arrangement is presumed to be in the child's best interests, and the Act does not presume equal parenting time or joint or separate decision-making.

By default, 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. Responsibilities can also be given to certain guardians only, exercised separately or together. Where family violence is a concern, the details of who decides what, and how, can be set out in an order.

A court may also require that parenting time or transfers be supervised by a named person. A parenting order can later be changed, suspended or terminated if there has been a change in the needs or circumstances of the child.

Protections that may be available

The Act sets no age at which a child chooses where to live. The child's views are one factor, weighed with the others.

What to do next

If you or your child are in immediate danger, contact emergency services right away. For the legal process, these steps can help you prepare:

• Write down incidents with dates, and keep messages, photos and any records of police, medical or counselling contacts.
• Note how events affected your child, since the court looks at the effect on the child.
• Check whether you already have an agreement or order, because its terms shape your options.
• Get legal advice early about the right court. In Provincial Court, a parenting order application is made on Form 3, and Form 15 is used for a priority parenting matter. In Supreme Court, a family case starts with a Form F3 Notice of Family Claim.
• Ask a lawyer how to present family violence evidence and whether supervision or other safeguards suit your case.

Frequently asked questions