Guardianship (Custody) & Parenting Arrangements in BC

After parents separate, they must figure out how they'll parent apart.

Preferably, they reach an agreement. They can do this one-on-one, with a lawyer's help or through an alternative dispute resolution method. Your agreement could be a private agreement or filed with the court so that it's enforceable.

Parents who can't come to an agreement may start a court case to ask the judge to make decisions for them. They'll go through the Supreme Court process (for divorces) or Provincial Court process (for nondivorces). The process ends when they negotiate an agreement or when a judge issues a final order after a trial.

Parents can also use the court process to get interim orders, designed to last until the end of a case. Parents who aren't divorcing sometimes exit the court process before trial and use their interim order like a final order.

Agreements and court orders must protect the child's physical, psychological and emotional safety and well-being.

Note that British Columbia now uses the terms guardianship and parenting time in place of child custody and access respectively. You'll still hear the old terms informally.

Who can get parenting time and parental responsibilities

Only guardians can exercise decision-making powers and have parenting time with a child. Someone who is not a guardian of a child, such as a grandparent, may be awarded contact. (See Contact with a child below.)

Most commonly, guardians are the child's legal parents. The following people can also be the guardian of a child:

• A stepparent who has lived with, and regularly looked after, the child
• A person who has an agreement with the child's guardians
• A person who takes over when a guardian dies or becomes incapacitated, per that guardian's instructions
• A person whom the court appoints

A stepparent or another third party can become a child's guardian even if the child already has both parents as guardians.

Guardians have parental responsibilities (also called decision-making responsibilities) unless the court takes these away. This gives them the right to make important decisions about the child, including:

• Where they go to school
• Medical treatments they undergo
• Activities they participate in
• Their religious or cultural upbringing
• Their financial and legal interests

During a guardian's time with the child, they are generally able to make day-to-day decisions about the child, including:

• What they eat
• What time they go to bed
• Whom they spend time with
• What they watch on TV

Children 12 or older must give permission before the court can grant a guardianship order for them.

Contact with a child if you don't get parenting time

Contact can mean slightly different things depending on which law applies to your case.

In British Columbia's Family Law Act (provincial law), contact refers to the time the child spends with someone who is not their guardian, like a parent who has lost guardianship rights or a grandparent.

In Canada's Divorce Act (federal law), contact means time the child spends with someone who isn't one of the divorcing spouses. A person seeking contact under this act must get the court's permission to apply.

A person can get contact through the court or via an agreement with the child's guardian. Courts prefer to stay out of these issues. If you can't agree with the child's guardian, it's unlikely the court will side with you.

By request of the child's guardian, the court could put restrictions on a person's contact. For example, the court may require that:

• The person stay within the child's neighborhood during the contact
• They not use drugs or alcohol less than 24 hours before seeing the child
• The contact be supervised by a third party
• The contact happen in the daytime

The two courts and how they make decisions

All decisions and agreements about guardianship, parental responsibilities, parenting time and contact must be in the best interest of the child. Among other things, this standard considers the following:

• The child's health and emotional well-being
• The child's views if they are mature enough to express them
• The child's relationships with the people in their lives
• The child's culture, language and heritage
• What would ensure stability in the child's life
• Who has cared for the child in the past

Both the Provincial and Supreme courts can make orders about guardianship, parenting arrangements, contact, and spousal and child support. But only the Supreme Court can process divorce and annulment cases and make decisions about the division of property and debt.

Married parents often choose to get parenting orders in Provincial Court to save time and money. They still have to do their divorce or annulment in Supreme Court.

In British Columbia, child custody is governed by both the federal Divorce Act and the provincial Family Law Act.

The Divorce Act applies to married parents, while the Family Law Act applies to parents who've never married each other. Only the Family Law Act applies in Provincial Court. Both the Divorce Act and Family Law Act apply in Supreme Court.

You can find more factors in the courts' parenting decisions in Section 37 of the Family Law Act and Section 16 of the Divorce Act.

Length of proceedings

Your case can resolve within weeks of you reaching an agreement with the other parent.

If you don't agree, the speed of your case will depend on many factors, such as the availability of the court and the other parent.

A divorce case that goes to trial can last from 1.5 to three years. Family cases in Provincial Court have fewer issues to address and often resolve in a shorter time period.

Cost of proceedings

The longer your case is in court, the more expensive it will be.

Lawyers in BC charge hourly rates that can range from $250 to over $1,000.

It costs $210 to initiate a divorce case. You'll need to pay another fee to file your final application ($80). If you want a Certificate of Divorce, which you'll need to get married to another person, you'll pay an extra $40. You may encounter other fees depending on what happens in your case.

There are no filing fees in Provincial Court.

In both courts, you may have to pay for a process server to deliver copies of court paperwork to the other parent, or for a psychologist to assess someone in the case. Also, you could pay tens of thousands of dollars in lawyer fees if you go to trial.

Alternative dispute resolution methods could cost thousands but are cheaper than going to trial.

Legal help and representing yourself

If you have a straightforward case with few issues in dispute, you may represent yourself in court. Representing yourself is not recommended if you have a complicated case or if your case is in Supreme Court.

Supreme Court is formal with more rules and paperwork. Provincial Court has fewer rules and is friendlier to parents who want to represent themselves.

To get legal help without paying a ton, you can hire a lawyer to provide limited services. For example, you can hire a lawyer just to draft a separation agreement.

There are many free resources for parents who need guidance:

• Counsellors at Justice Access Centres (Nanaimo, Surrey, Vancouver and Victoria only) and Family Justice Centres help parents with Provincial Court cases.
• Supreme Court's resources for litigants include guidebooks and limited help from lawyers.
• Legal Aid BC provides legal information and advice.
• Courthouse Libraries BC helps you research past cases.

Staying organized

Setting up parenting arrangements after a separation requires serious organization. You may need to create a parenting plan, draft multiple parenting time schedules, track your time with your child, calculate expenses and beyond.

The Custody X Change app enables you to do all of that in one place.

With a parenting plan template, customizable parenting calendars, an expense tracker and more, Custody X Change makes sure you're prepared for whatever arises in your transition to two households.

Take advantage of our technology to stay on top of all the moving parts of your situation.

Our professional sources

The following professionals helped us understand British Columbia family law and may be able to help you, too.

Abby Petterson
North Vancouver, BC

Bay Law Group
Julia Tchezganova
Victoria, BC

Divorce Redefined
Cindy Stibbard
Vancouver, BC

Gould Goodwin & Company
David H. Goodwin
New Westminster, BC

Janet L. Clark
New Westminster, BC

North Shore Law
Justin Werb
North Vancouver, BC

Patricia Lane
Victoria, BC

South Coast Law Group
Darnell Smith
Surrey, BC