Is There Still Custody in BC? Guardianship and Parenting Time Explained

If you are separating, you have probably heard the words custody and access from friends, older relatives or television. In British Columbia, the Family Law Act uses different words, and that can make it hard to know where you stand.

This article explains what replaced custody and access, whether there is a default arrangement, and how an older order is treated today. It is general information only.

This article covers the law of British Columbia.

What replaced custody and access

Part 4 of the Family Law Act replaced the old idea of custody and access with guardianship, parental responsibilities, parenting time and contact. Each parent is a guardian while living together and after they separate.

• Guardianship: the status that lets a person have parental responsibilities and parenting time.
• Parental responsibilities: decision-making and care, such as education, health-care consent and where the child lives.
• Parenting time: time the child is with a guardian.
• Contact: time with a person who is not 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 that the parent is a guardian, or the parent regularly cares 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. Guardians can share all parental responsibilities or divide them up. A stepparent does not become a guardian only because of a relationship with a guardian; a court must appoint them.

Is there a default 50/50 arrangement?

No. The Act says no particular parenting arrangement is presumed to be in the child's best interests, and it does not presume equal parenting time, equal allocation of parental responsibilities, or joint or separate decision-making. Each case turns on the child's best interests.

In making an agreement or order, the parties and the court must consider the child's best interests only. Factors include the child's health and emotional well-being, the child's views unless inappropriate, the child's relationships, the history of care, the need for stability and the impact of family violence.

Family violence is part of the assessment. The Act's definition includes physical abuse, sexual abuse, psychological or emotional abuse, and a child's direct or indirect exposure to family violence. When assessing it, the court must consider things like its nature and seriousness, how recently and how frequently it occurred, and the steps taken to prevent further violence. 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.

The Act sets no age at which a child chooses. The child's views are one factor, weighed with the other factors and the child's best interests.

How old custody and access orders are read

If an earlier agreement or order gave a party custody or guardianship, that party is a guardian under the Act; if it gave only access, the party 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 for changing, suspending or terminating an earlier custody or access order. A current parenting order can be changed if the child's needs or circumstances have changed.

Contact means contact between a child and a person other than the child's guardian, on terms in an agreement or order. A non-guardian, such as a grandparent, may be granted contact by a court order, and the court decides on the child's best interests.

A contact order can be changed, suspended or terminated if the child's needs or circumstances have changed. Contact can also be set by agreement between a guardian and a non-guardian, but it is binding only if made by all guardians who decide with whom the child associates.

Married parents and the Divorce Act

If you are married and divorcing, the Supreme Court family claim form covers divorce and orders about children, and it asks whether the claim relies on the Divorce Act or the Family Law Act. Which law applies to your situation is worth confirming with a lawyer.

What to do next

Start by finding any existing agreement or order and reading how it describes each parent's role. Parents can make a parenting agreement, which is binding 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.

• Locate old agreements or orders and note the exact wording.
• List what you want decided: residence, schooling, health care, schedule.
• Think about how the child's best interests are served, not only your preferences.
• Get legal advice before filing or signing anything.

In Provincial Court, you apply for a parenting order using Form 3 'Application about a family law matter'. In all Provincial Court locations 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.

If you are thinking about moving with a child, the relocation rules apply to a change in residence that can reasonably be expected to significantly affect the child's relationship with a guardian or other significant person, where a written agreement or order on parenting arrangements or contact applies. In that case, a guardian planning to relocate the child must give other guardians and contact persons at least 60 days' written notice stating the date and proposed location, although the court may exempt notice where it would risk family violence or there is no ongoing relationship.

Frequently asked questions