When Can a Parent Refuse Parenting Time in BC Without Breaking the Order?

You have a parenting order or agreement, and the other parent is due to collect the children. Maybe you are worried about their driving, their drinking or how the children have been coming home. Or you may be the parent whose time was just refused. Either way, the question is the same: when is saying no allowed?

In British Columbia, the short answer is that you should be careful. The Family Law Act sets out a small number of situations where a denial is not wrongful, and it gives courts real tools when a denial is wrongful. This article explains how that works in plain terms. It is general information, not advice on your situation.

This article covers the law of British Columbia.

An order or agreement stays binding until it is changed

A court order does not stop applying because one parent thinks it no longer suits the family. A court can change, suspend or terminate a parenting order on application, but only if it is satisfied there has been a change in the needs or circumstances of the child since the order was made, including because of a change in another person's circumstances.

A written family law agreement is also binding on the parties, whether or not it has been filed with a court. Parenting agreements, though, are valid only to the extent they serve the child's best interests.

If your parenting order was made under the federal Divorce Act rather than the Family Law Act, it is varied under section 17 of the Divorce Act instead. The court must find a change in the circumstances of the child.

When a denial is not wrongful

The Family Law Act recognizes that sometimes a guardian has a good reason to withhold time. A denial is not wrongful where one of these applies:

• The guardian reasonably believed the child might suffer family violence.
• The person who was to have the time was impaired.
• The child was ill, and there is medical documentation to support it.
• The person repeatedly failed to exercise their time without notice in the previous 12 months.
• The person cancelled without later notice.

The court may also find that there was some other sufficient justification. Whether a particular worry about family violence fits the first exception depends on your situation, so it is worth confirming with a lawyer before you act on it.

Medical illness also depends on proof. Keep the paperwork if a child is sick, because the exception refers to supporting medical documentation.

Why safety concerns carry weight

Agreements and orders about parenting must be made in the best interests of the child only. An arrangement 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.

When family violence is a concern, the court looks at factors such as the nature and seriousness of the violence, how recent and frequent it was, coercive and controlling behaviour, harm to the child's safety and well-being, and steps taken to prevent it happening again.

A parent's conduct is considered only if it substantially affects one of the best-interests factors. A general grievance about your ex is unlikely to justify refusing time.

What can happen if a denial is wrongful

A person entitled to parenting time or contact under an agreement or order who is wrongfully denied it may apply to the court within 12 months after the denial. The court may order remedies including compensatory time, reimbursement of expenses, supervision, or a payment of up to $5,000 or a fine of up to $5,000.

Enforcement can escalate. The general enforcement section may be used only if no other provision of the Act applies, and it allows security, payment of expenses or a fine of up to $5,000. As an extraordinary remedy, if the court is satisfied no other order will secure compliance, it may order imprisonment of up to 30 days after giving the person a reasonable chance to explain. The same section also allows police apprehension of a child in cases of wrongful denial of parenting time or withholding.

These are last resorts, not the usual outcome. Still, they show why refusing time without a clear basis carries risk.

The other side: a parent who keeps skipping their time

If a person repeatedly fails to exercise the parenting time or contact they are entitled to, the court may order remedies including dispute resolution, counselling, expense reimbursement, and security or reporting requirements.

If you are the parent who has been refused, check whether you have been missing time or cancelling without notice. Those patterns can make a later denial not wrongful.

The safer course: apply to change the order

If you believe the current schedule is unsafe or no longer fits the child's needs, asking a court to change it is generally safer than deciding for yourself. In Provincial Court, an application to change or cancel an order under the Family Law Act is made on Form 3 (Application About a Family Law Matter) with the schedule for the order type, which is Schedule 2 for parenting. A copy of the order or agreement is attached.

• Find your order or agreement and confirm whether it was made under the Family Law Act or the Divorce Act.
• Write down what has changed for the child, with dates.
• Keep medical records, messages and any other documents that support your concern.
• Keep following the order unless one of the situations the Family Law Act lists as not wrongful applies, and get advice if you are unsure whether yours does.
• Get legal advice before withholding time, and promptly if time has been denied to you, because of the 12-month window.

If you are in immediate danger or the child is, contact police or emergency services first. A lawyer can then help you decide what to file.

Frequently asked questions