Is There Still Custody in BC? Family Law Act Terms Explained

If you separated years ago, or your friends talk about custody and access, the words in British Columbia's Family Law Act may sound unfamiliar. The old labels have been replaced.

This article explains the new terms, who is a guardian, and how older orders are read today. It is general information, not advice on your own order.

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. Married parents who divorce may be in Supreme Court, where the Form F3 Notice of Family Claim asks whether the claim relies on the Divorce Act or the Family Law Act.

Who is a guardian

While the child's parents live together and after they separate, each parent is a guardian. 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 the parent is a parent under the s. 30 arrangements, all guardians agree in writing, or the parent regularly cares for the child.

A stepparent does not become a guardian only because of the relationship; a court must appoint them. Only a guardian may have parental responsibilities and parenting time.

If you are an unmarried parent who never lived with the child, you can become a guardian by a written agreement with the other parent naming you as guardian, or by regularly caring for the child. A non-guardian parent can still have contact but has no parental responsibilities. A father who is not a guardian can apply to the court under s. 51 to be appointed a guardian. If more than one man could be presumed to be the biological father, no presumption of parentage applies.

Responsibilities, parenting time and contact

Parental responsibilities include day-to-day care, where the child lives, education and activities, cultural and religious upbringing, health-care consent, passports and benefits, and receiving information. Unless an agreement or order says otherwise, each guardian may exercise them after consulting the other guardians, unless consulting would be unreasonable or inappropriate.

The Act does not presume equal parenting time or any particular arrangement; each case turns on the child's best interests.

When an agreement or order is made about guardianship, parenting arrangements or contact, the parties and the court must consider the best interests of the child only. The factors include the child's health and emotional well-being, the child's views unless it would be inappropriate to consider them, the child's need for stability, and the impact of family violence on the child's safety, security or well-being. The Act sets no age at which a child chooses; the child's views are one factor weighed with the others.

Contact means time between a child and someone who is not a guardian, such as a grandparent, on terms in an agreement or order. A non-guardian can apply to the court for a contact order.

How older custody and access orders are read

If an earlier agreement or order gave someone custody or guardianship, that person is a guardian under the Act. If it gave only access, that person 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. A change generally needs a change in the child's needs or circumstances.

Guardians may also make an agreement about parenting arrangements. It is binding only if made after separation, or when the parties are about to separate and it is meant to take effect on separation, and a written agreement filed in court is enforceable as if it were a court order. On application, the court must set aside or replace all or part of a parenting agreement that is not in the child's best interests.

What to do next

• Find your old agreement or order and read the exact wording.
• Work out whether you are a guardian, or have contact only.
• Note any restrictions in the order on decisions or time.
• If circumstances have changed, speak with a lawyer about applying to change the order.
• To apply in Provincial Court, the application is Form 3.

Where you apply matters. In Supreme Court, a family case starts with Form F3 Notice of Family Claim. In Provincial Court, a party must complete a Parenting After Separation course before moving forward with an application, unless exempt. In Supreme Court the course is not mandatory, though the judge may suggest it. How this applies depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions