Is 50/50 Parenting Time the Default in BC After Separation?

Many parents assume that when a couple separates, the law starts from an even split of time with the children and shared decisions. It is an understandable assumption, and it is often repeated among friends and family. In British Columbia, though, the law does not work that way.

This article explains what the Family Law Act actually says about parenting time and decision-making after separation, how the court looks at a child's best interests, and how a schedule gets set and changed. It is general information, not advice about your own situation.

This article covers the law of British Columbia.

No automatic 50/50 rule

The Family Law Act says that no particular parenting arrangement is presumed to be in a child's best interests. It also says the Act does not presume equal allocation of parental responsibilities, equal parenting time, or joint or separate decision-making. Each case is decided on the child's best interests.

That works in both directions. Nobody starts with an advantage, and equal time is not ruled out. A schedule that is close to equal can be right for one family and wrong for another, depending on the child.

Guardianship, responsibilities and parenting time

While parents live together and after they separate, each parent is a guardian of the child, so separation alone does not end guardianship. There are exceptions. An agreement or order made after separation, or when the parents are about to separate, can provide that a parent is not a guardian. A parent who has never lived with the child is also not a guardian unless an exception applies, such as all guardians agreeing in writing or the parent regularly caring for the child.

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 allocated to certain guardians only, to be exercised separately or together. Parental responsibilities include day-to-day decisions, where the child lives, education and activities, and consent to health care.

Parenting time is the time a child is with a guardian, as allocated under an agreement or order. During it, the guardian may make day-to-day decisions and have day-to-day care, control and supervision unless the agreement or order says otherwise. Decision-making and time are separate questions, so a schedule does not have to answer both the same way.

How best interests are decided

In 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 the Act lists include:

• the child's health and emotional well-being
• the child's views, unless it would be inappropriate to consider them
• the nature and strength of the child's relationships with significant people
• the history of the child's care and the child's need for stability
• each guardian's ability to exercise parental responsibilities
• the impact of any family violence on the child's safety, security or well-being, and whether cooperation between guardians is appropriate

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, security and well-being. 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.

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

When family violence is in issue, the court must consider things like its nature and seriousness, how recent and frequent it was, whether there is a pattern of coercive and controlling behaviour, and whether the child was exposed to it. Family violence is defined broadly and includes physical and sexual abuse, psychological or emotional abuse, and a child's exposure to violence.

How a schedule actually gets set

Guardians may make an agreement about parenting arrangements, including how responsibilities and parenting time are allocated and how disputes are resolved. An 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. The court must set aside or replace all or part of an agreement that is not in the child's best interests.

If you cannot agree, a guardian can apply for a court order on allocation of parental responsibilities, parenting time and related matters. An order must not be made if the guardians are the child's parents and are not separated. The court may also require a named person to supervise parenting time or transfers.

In Provincial Court, a party must complete the Parenting After Separation course before moving forward with an application, before the first court date unless exempt, and the Certificate of Completion is the proof. Exemptions include a course completed within the past 2 years, a consent order being filed, or all children being 19 or older, and are requested on Form 20.

Changing the arrangement later

A parenting order can be changed, suspended or terminated if there has been a change in the needs or circumstances of the child. Where informal arrangements have been settled, a guardian must not change them without consulting the other guardians unless consultation is unreasonable or inappropriate.

Children's needs shift as they grow, so a schedule that suits a toddler may not suit a teenager. Whether a particular change is enough to reopen an order depends on the facts.

What to do next

• Check whether you are a guardian, especially if you never lived with the child.
• Write down the child's routines, school, health needs and who has done the day-to-day care.
• Note any safety concerns and keep records of them.
• Consider whether a written agreement made after separation could work, and whether it should be filed.
• If you may need Provincial Court, find out about the Parenting After Separation course and any exemption early.
• Speak with a family lawyer before signing an agreement or filing, so you understand how it fits your situation.

Frequently asked questions