Medical, School and Religion Decisions for a Child in British Columbia

Few things strain a separated family like a disagreement over which school your child attends, whether a treatment goes ahead, or how your child is raised in matters of faith. You may be unsure who actually has the final say.

In British Columbia, the answer depends on guardianship, on any agreement or order you have, and on what is best for the child. This article explains the default rules, how decisions can be divided, and what happens when you cannot agree.

This article covers the law of British Columbia.

Who has decision-making power

While parents live together and after they separate, each parent is a guardian of the child, so separation alone does not end guardianship. An agreement or order made after separation, or when the parents are about to separate, can provide that a parent is not a guardian.

Exception: a parent who has never lived with the child is not a guardian unless one of the exceptions applies, such as all guardians agreeing in writing, or the parent regularly caring for the child. Only a guardian may have parental responsibilities and parenting time.

What the decisions cover

Parental responsibilities include day-to-day decisions and care, where the child lives, with whom the child lives and associates, education and activities, cultural and religious upbringing, health-care consent (subject to section 17 of the Infants Act), applying for passports and benefits, receiving notices and information, and starting or defending legal proceedings for the child.

So medical, school and religion questions all fall within parental responsibilities. A person who is not a guardian, such as a parent without guardianship, can still have contact with the child but has no parental responsibilities.

Sharing or dividing responsibilities

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, exercised separately or together. Guardians can share all of them or divide them up.

A parenting 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. 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.

During parenting time, the guardian may make day-to-day decisions and have day-to-day care, control and supervision unless the agreement or order says otherwise. Where informal arrangements are settled, a guardian must not change them without consulting the other guardians unless consultation is unreasonable or inappropriate.

When you cannot agree

If guardians cannot agree, a guardian can ask a court to make orders on the allocation of parental responsibilities. No particular arrangement is presumed to be in the child's best interests, and there is no presumption of joint or separate decision-making. The court considers the child's best interests only. Its factors include the child's health and emotional well-being, the child's views unless inappropriate, the history of the child's care and the child's need for stability. There is no set age at which a child decides.

Options when guardians are stuck:

• Negotiate or use the dispute resolution process your agreement sets out.
• Use a parenting coordinator, who may act only under a written agreement or court order, may help the parties reach consensus, and may make determinations only on prescribed matters within set limits.
• Apply to court for a parenting order allocating responsibilities.
• Ask the court to appoint someone to assess the child's needs or views.

A parenting order can be changed, suspended or terminated if there has been a change in the needs or circumstances of the child.

What to do next

• Read your agreement or order to see who has which responsibilities and what dispute process applies.
• Put your proposal in writing and show that you consulted the other guardian, since consultation is the default expectation.
• Gather records relevant to the child's needs, such as school and medical information.
• 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.
• Applications start with Form 3 in Provincial Court or a Form F3 Notice of Family Claim in Supreme Court.
• Speak with a lawyer about which approach suits your situation.

Frequently asked questions