This information has been updated to reflect changes to the Divorce Act that took effect on March 1, 2021.
What you should know
When parents separate, they have to make some basic decisions about their children. Where will they live? How will they make decisions about the children? How much time will they spend with each parent?
There are two laws that deal with these issues: the federal Divorce Act and BC’s Family Law Act. The Divorce Act only applies to parents who are (or used to be) married to each other. The Family Law Act applies to all parents. It applies whether the parents are:
- married or unmarried spouses,
- dating, or
- not in a relationship.
Under both laws, if parents can’t agree about the care of their children, they can ask a court to decide. Under the Family Law Act, parents can also ask an arbitrator to decide. When making decisions like these, courts and arbitrators only consider the best interests of the children.
As of March 1, 2021, the terms “custody” and “access” are no longer used in the Divorce Act. Instead, the Act uses terms to talk about parenting arrangements that are very much like the BC Family Law Act.
Decision-making responsibility and parenting time
Under the Divorce Act, decision-making responsibility means how married spouses make choices about important aspects of the children's lives. This includes where they go to school and how they’re treated when they get sick. It also includes what sports and other important activities they'll be involved in and if they’ll be raised in a religion. Decision-making responsibility can be shared between spouses or given to just one spouse.
Parenting time is just like it sounds. It’s the time a spouse spends with a child. Usually this is set by a schedule agreed on by the spouses or set by the court. During their parenting time, each spouse can make daily decisions about a child, such as decisions about bedtime, homework, and meals.
A spouse who has decision-making responsibility or parenting time also has the right to ask for and get information about a child’s health, education, and welfare.
Guardians, parental responsibilities, and parenting time
Meanwhile, the BC Family Law Act talks about guardians. Guardians are usually the parents of a child. (Below we explain some situations where others can be guardians.) While a child’s parents are living together and even when they separate, each parent is presumed to be the child’s guardian.
Guardians have parental responsibilities for a child. Parental responsibilities under the Family Law Act is like decision-making responsibility under the Divorce Act. That is, parental responsibilities mean how guardians make choices about important aspects of the children’s lives. This includes where they go to school, how they’re treated when they get sick, and if they’ll be raised in a religion. It also includes making daily decisions affecting the children, like what they wear or what they eat. Parental responsibilities can be shared between guardians or they can be given to just one guardian.
The time a guardian spends with a child is called parenting time. During a guardian’s parenting time, the guardian is responsible for the care of the child. They are also responsible for making decisions about day-to-day matters involving the child.
Someone who isn’t a spouse or guardian can have time with a child. Under both the Divorce Act and the Family Law Act, this is called contact. A grandparent or another family member might have contact with a child. So might another adult with an important role in the child’s life. A key difference is that a person with contact can’t make daily decisions about a child. A person with contact also isn’t entitled to ask for or get information about the child’s health, education, or welfare.
“Marcie and I broke up almost a year ago. We have two kids (9 and 13) together. At first, the kids lived with each of us half the time. Now, I only see the kids on the weekends. We’ve been working with a family justice counsellor. They’ve been helping us figure things out through mediation because the kids want to see me more often.”
– Jannik, Cranbrook, BC
After they separate, a child’s parents may be able to reach an agreement about parental responsibilities (or decision-making responsibility under the Divorce Act) and parenting time. They may decide to put this agreement into writing. This is called a separation agreement or a parenting agreement.
If they can’t agree, the parents can ask a court or an arbitrator to decide. The court (or arbitrator) will make a decision based on what’s best for the child. That is the only consideration courts and arbitrators can take into account.
The arrangements for parenting made in orders and agreements are called parenting arrangements in the Family Law Act. Under the Divorce Act they are called a parenting plan.
A child's views must be considered when deciding on parenting arrangements, unless it would be inappropriate to do so. However, while children have a voice in these decisions, they don’t have a choice. These decisions are made by parents or, if the parents can’t decide, by a court or an arbitrator.
If a child is old enough and mature enough, the court or arbitrator will consider what the child wants when determining parenting arrangements and contact.
There’s no particular age at which children have a right to decide who they’ll live with. The views and preferences of all children are important. The wishes of children who are 12 and older will carry more weight. The wishes of an older teenager may be decisive.
Parents may disagree about a child’s parenting arrangements. If that’s the case, a court or an arbitrator may ask a professional to prepare a report about the child’s wishes. The professional may be a family justice counsellor, parenting coordinator, social worker, psychologist, clinical counsellor, or a lawyer with special training. Many parents also agree to have a report done privately without a court order.
There are two main types of reports about children's wishes:
- A non-evaluative views of the child report. This describes what a child says during an interview with the professional.
- An evaluative views of the child report. This describes what a child says and gives an opinion about the child’s needs or views. For example, how closely do the views expressed by the child match the child’s actual views? Does the child understand the consequences of their wishes? Has the child been coached to say something in particular?
The costs of these reports range from about $1,000 for non-evaluative views of the child reports to about $3,500 for an evaluative views of the child reports. A court can also ask that a family justice counsellor prepare an evaluative views of the child report for free. But these reports can take up to six months to finish.
Where parents disagree about a child’s care arrangements, a court or an arbitrator can ask for a parenting assessment, sometimes called a section 211 report, after the part of the Family Law Act that talks about them. These reports are prepared by family justice counsellors, social workers, psychologists, and clinical counsellors. They make recommendations about the parenting arrangements that are likely to be in the best interests of the child.
The report writer will look at:
- the needs of the child,
- the views of the child, if the child is old enough to express them, and
- the ability of the parents to meet the child’s needs.
The cost of these assessments can range from $5,000 to $15,000. A judge can also ask that a family justice counsellor prepare a parenting assessment for free. Because of high demand, reports prepared by family justice counsellors can take many months to complete. Psychologists and other counsellors can write a private report faster but they are expensive.
The Family Law Act says that a child’s parents are the guardians of the child while they live together and after they separate. But, if the parents of a child did not live together after the child was born, neither is presumed to be the child’s guardian. (Normally, the court acts as if the parent with whom the child mostly lives is the child’s guardian.)
A parent who has never lived with their child is not the child’s guardian unless one of the following applies:
- the parent regularly cares for the child,
- there’s an agreement or court order saying that the parent is a guardian, or
- they are a parent under a written agreement providing for the child’s birth through assisted reproduction.
Someone can become a guardian through a guardian’s will. Or they can be appointed as a guardian when a guardian dies or becomes incapacitated. Or they can apply to court to become a guardian.
If you apply to court to become a guardian, the law in BC says you have to give evidence for why this would be in the best interests of the child. This means:
- filling out a special affidavit (a legal document where you make statements about facts you say are true),
- getting a criminal record check,
- getting a record check from the child protection authorities, and
- providing certain information about any children that are, and have been, in your care.
You don’t need a lawyer. But you should get legal advice and representation where possible. See the “Who can help” section below.
If you’re planning to represent yourself, consider getting legal advice about your case beforehand. Or you could explore hiring an unbundled lawyer to help coach you or help with part of your case. To find a lawyer who offers unbundled services, see unbundlinglaw.ca.
Yes. The Divorce Act and the Family Law Act encourage parents to resolve their family law problems out of court. You can try to work out parenting arrangements through mediation or collaborative negotiation.
Mediation is a process where the parents meet with a neutral person called a mediator. The mediator helps them talk to each other and find a solution they agree on. The provincial government offers couples the services of trained mediators, called family justice counsellors, for free. Or you can hire a private mediator.
A collaborative negotiation approach may also be used to settle things without going to court. In collaborative negotiation you and the other parent each hire specially-trained lawyers. You and your lawyers sign an agreement saying that no one will go to court or threaten to go to court. If the collaborative process breaks down, you and the other party must hire new lawyers if you want to go to court.
If you’re not able to come to an agreement, you could also try arbitration. An arbitrator can’t make an agreement, but will make a decision, just like a judge.
For more on these options, see our information on mediation, collaborative negotiation, and arbitration.
There are times when mediation, collaborative negotiation, and arbitration might be inappropriate. This might be true if there has been family violence, or if someone is making threats to damage property or leave with a child.
No order or agreement about children is ever absolutely final. When there’s a significant change in circumstances affecting a child’s best interests, a parenting order or agreement may be changed or set aside. That is, something new must have happened since the original order or agreement was made to justify the change.
The Family Law Act has rules about enforcing parenting and contact orders and agreements. In special circumstances, the court can order police to help enforce these orders and agreements. But this is usually a last resort.
If you’re afraid the other parent is about to take your children out of the country and not bring them back, see a lawyer immediately. There are special rules in the Family Law Act and the Divorce Act that can help with this too.
There are rules about what happens when someone wants to move away — with or without their children — after separation. Such a move might have a significant impact on the relationship of a child with another person who has parenting time, decision-making responsibility, or contact. The law calls this type of move a relocation.
Under the Family Law Act, someone who wants to relocate has to give 60 days’ written notice. This must be given to anyone who is a guardian of a child or has contact with a child. Only guardians may object to the move. To do so, they must file a court application to stop the move within 30 days of receiving notice of the move.
Under the Divorce Act, someone who wants to relocate also has to give 60 days’ written notice. This relocation notice must be given to anyone who has parenting time, decision-making responsibility or contact with the child under a Divorce Act order. Only someone who has parenting time or decision-making responsibility may object to the move. To do so, they must object within 30 days of receiving notice of the move by giving written notice or filing a court application.
Under both laws, when there has been family violence, you can ask the court for an exception to the rule that the relocating person give notice of the move.
Who can help
Family justice counsellors in Family Justice Centres throughout BC can help with guardianship, parenting, and related issues. Their services are free.
- Call 604-660-2421 (in the Lower Mainland)
- Call 1-800-663-7867 (toll-free)
- Visit website
Other options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.
- This information applies to British Columbia, Canada
- Reviewed in March 2021
- Time to read: 11 minutes