Is There Still Custody in British Columbia After Separation?

If you have separated, you have probably heard the word custody from friends, relatives or older court papers. In British Columbia, that word is no longer how the law describes who cares for a child and who makes decisions.

This article explains what replaced custody, whether you are still a guardian after separation, and how older orders that use the old words are treated today. It is general information, not advice about your own situation.

This article covers the law of British Columbia.

What replaced custody and access

Part 4 of the Family Law Act replaced the old ideas of custody and access with guardianship, parental responsibilities, parenting time and contact. The new words separate two questions that custody used to blur together: who has responsibility for the child, and how much time the child spends with each person.

• Guardian: a person who is a guardian under section 39 of the Act, or who is appointed under the Act.
• Parental responsibilities: the decision-making and care duties for a child, such as where the child lives, education and health-care consent.
• Parenting time: the time a child is with a guardian, as allocated under an agreement or order.
• Contact: time between a child and a person who is not a guardian, on terms in an agreement or order.

Are you still a guardian after you separate?

Usually, yes. While the child's parents live together and after they separate, each parent is a guardian of the child, and 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 not a guardian unless an exception applies, such as all guardians agreeing in writing or the parent regularly caring for the child. A stepparent does not become a guardian only because of a relationship with a guardian.

How decisions and time work without custody

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, and exercised separately or together.

During parenting time, a guardian may make day-to-day decisions and have day-to-day care, control and supervision unless the agreement or order says otherwise. The law does not start from an equal split. No particular parenting 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.

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.

Older orders that still say custody

Many families still hold agreements or orders made before the current Act. Under the transitional rules, a party given custody or guardianship by an earlier agreement or order is a guardian under the Act, and a party given only access has contact. Their rights are defined by the terms of the original agreement or order.

The Act coming into force is not, by itself, a change in circumstances that allows an earlier custody or access order to be changed, suspended or terminated.

What to do next

• Find any agreement or court order and check whether it uses the words custody, access, guardian, parenting time or contact.
• Work out whether you are a guardian, especially if you never lived with the child.
• If you plan to apply in Provincial Court, know that a Parenting After Separation course must generally be completed before the first court date unless you are exempt.
• Start a Provincial Court parenting application with Form 3, Application about a family law matter.
• Speak with a lawyer if an older order is unclear or you want to change it.

Frequently asked questions