Custody, Guardianship and Parenting Time in BC
Understand how custody, guardianship and parenting time work in British Columbia, and how decisions are made in your child’s best interests.
Parents who separate or were never together still share important legal responsibilities for their children. In British Columbia, family law focuses on parenting arrangements, guardianship, and parenting time, rather than using the older term “custody.” These rules are designed to protect children and to make sure that decisions are made in their best interests, not to reward or punish either parent.
From “Custody” to Modern Parenting Arrangements
Across Canada, many provinces have moved away from the traditional language of “custody” and “access” and instead use terms like parenting time, parental responsibilities, or guardianship. In British Columbia, this shift reflects a broader change in how the law views parenting after separation: children benefit when parents focus on cooperation and the child’s needs, rather than on winning legal labels.
Federal family law, including the Divorce ActFamily Law Act, both apply to parenting issues. Which law applies depends on whether the parents are married and whether they are seeking a divorce, but both emphasize the child’s best interests as the guiding principle.
Key Concepts: Guardianship, Parenting Time and Responsibilities
When parents separate, the law looks at several distinct but related ideas. Understanding these can help reduce conflict and make negotiations or court processes easier.
Guardianship: Who Has the Legal Role of a Parent?
Guardianship refers to the legal status of the adults who can make major decisions about a child’s life. In most cases, a child’s parents are automatically guardians and remain so unless a court orders otherwise.
- Guardians are usually parents: Biological or adoptive parents are presumed to be guardians from the child’s birth.
- Others can become guardians: Relatives or other adults can be appointed as guardians when parents die, are unable to care for the child, or are found unfit.
- Proof of guardianship: Birth certificates, adoption orders, or court guardianship orders are common forms of legal proof.
Guardians have legal authority and responsibility to act for the child in important areas, including education, health care, and long-term living arrangements. They must always act in the child’s best interests, not their own.
Parenting Time: When the Child Is With Each Parent
Parenting time is the time a child spends in the care of a parent or guardian. It includes daily routines as well as holidays and special occasions. During parenting time, the adult is responsible for the child’s safety, supervision, and day-to-day decisions.
- Regular schedules: Parenting time can be shared on a weekly, bi-weekly, or monthly schedule that fits the child’s needs.
- Special days: Parents often arrange specific plans for birthdays, school breaks, and religious holidays so the child can spend meaningful time with each side of the family.
- Day-to-day decision-making: The parent who has parenting time at a given moment typically makes routine decisions about meals, bedtimes, and activities.
Parental Responsibilities: Who Makes Major Decisions?
Parental responsibilities involve major decisions that shape a child’s future, such as where they live, what school they attend, and what medical treatment they receive. Guardians may share these responsibilities or one guardian may be given primary authority, depending on the circumstances and what best serves the child.
Common areas of parental responsibility include:
- Choosing or approving schools and educational programs
- Deciding on non-emergency medical treatment and health care providers
- Determining the child’s main residence
- Making decisions about religious upbringing or cultural practices
- Managing important legal matters involving the child
How Guardianship Is Established or Changed
Most parents become guardians automatically, but there are situations where guardianship must be clarified or changed. This often happens when parents are separating, when a parent dies, or when someone other than a parent takes on primary caregiving responsibilities.
Automatic Guardianship and Presumptions
In Canadian law, there is a general presumption that parents are guardians. For example, in Alberta the birth mother is automatically recognized as a guardian, and the father is presumed to be a guardian if he was married to, living with, or actively parenting alongside the mother at the time of birth. Similarly, in other provinces, parents are usually joint guardians while living together and often continue as joint guardians after separation unless a court decides otherwise.
When Someone Else Becomes a Guardian
Other adults may become guardians when parents cannot safely or reliably care for the child. Courts can appoint relatives or non-relatives, and must always consider whether the change is in the child’s best interests.
- Relatives: Grandparents, adult siblings, aunts, uncles, or cousins may be appointed guardians when parents die, are incapacitated, or are found unfit.
- Non-relatives: Family friends or foster parents can be guardians if they have a close relationship with the child and can provide a stable home.
- Government involvement: In some situations, public guardians or child protection agencies may step in to ensure the child’s safety.
Applying to Become a Guardian
Adults who are caring for a child but are not already legal guardians may need to apply for guardianship, especially to make decisions in schools, health care, or immigration processes.
Typical steps include:
- Filing court forms that explain the relationship with the child and the reasons guardianship is needed
- Providing evidence such as school records, medical information, and statements showing actual care and control of the child
- Serving notice on parents or other interested parties who may consent or oppose the application
- Attending a court hearing, where a judge examines whether guardianship is truly in the child’s best interests
If the court approves the application, it issues a Guardianship Order that defines the scope of the guardian’s decision-making powers.
Best Interests of the Child: The Core Legal Test
Whenever parenting or guardianship is in dispute, Canadian courts must consider the best interests of the child above all else. This principle is found in federal and provincial legislation and is supported by the Canadian Charter of Rights and Freedoms.
Common Factors in the Best Interests Test
While the exact wording differs between laws, courts typically look at similar factors, including:
- The child’s physical safety and emotional well-being
- The strength, stability, and quality of the child’s relationships with each parent and other significant people
- The child’s history of care and the existing pattern of parenting
- The child’s views and preferences, given their age and maturity
- Each parent’s ability and willingness to meet the child’s needs and support the child’s relationship with the other parent
- Any history of family violence, substance misuse, or neglect
Courts do not focus on parental rights or on who is “to blame” for the end of the relationship. Instead, the law asks which arrangements are most likely to promote the child’s healthy development and protect them from harm.
Jurisdiction: Which Court Can Decide Your Parenting Case?
Parenting disputes sometimes involve parents living in different provinces or countries. Canadian law includes rules to determine which court has authority, or jurisdiction, to make parenting orders.
| Scenario | Where the Court May Have Jurisdiction |
|---|---|
| Child habitually resident in a province | The courts of that province usually have primary jurisdiction over custody and parenting matters. |
| Child present but not habitually resident | Courts may assume jurisdiction if the child has a strong connection to the province and there is no competing proceeding elsewhere. |
| Risk of serious harm | Courts can make emergency orders to protect a child who is physically present in the province but at risk of serious harm, even if another place would normally have jurisdiction. |
| Child domiciled in Quebec | Quebec authorities have jurisdiction to decide custody when the child is domiciled in Quebec. |
Parenting After Separation: Practical Considerations
Legal rules are only part of the picture. Parents also need practical arrangements that work day-to-day. In BC, many families resolve parenting issues through agreements rather than court orders, but these agreements should still reflect the child’s best interests and comply with legal standards.
Parenting Plans and Agreements
A parenting plan is a detailed written agreement that sets out parenting time, decision-making responsibilities, and communication between parents. When properly drafted, it can be filed with the court to become enforceable.
Effective parenting plans often:
- Set out clear schedules and exchange locations
- Include rules for holidays, school breaks, and special occasions
- Define how major decisions will be made jointly or separately
- Provide methods for resolving disagreements, such as mediation
When a Parent Dies or Becomes Unable to Care for the Child
When a parent who is a guardian dies, courts look at the child’s existing relationships and needs to decide whether the surviving parent remains sole guardian or whether another person should be added or substituted as guardian.
- If the surviving parent is already a guardian and able to care for the child, they often continue as guardian.
- If the surviving parent is not a guardian, or there are serious safety concerns, relatives or other caregivers may apply to become guardians.
- Guardianship orders may also be adjusted if a parent becomes seriously ill or otherwise unable to meet parenting responsibilities.
Frequently Asked Questions
Is “custody” still a legal term in British Columbia?
In BC family law, the focus is now on guardianship, parenting time, and parental responsibilities rather than the older terms “custody” and “access,” although those terms may still appear in some federal divorce documents and in other provinces.
Do both parents automatically have guardianship?
Generally, both parents are presumed to be guardians, especially while they live together. After separation, they often remain joint guardians unless a court decides that one parent should be removed or limited for safety or other serious reasons.
Can a grandparent or other relative become a guardian?
Yes. Grandparents, adult siblings, aunts, uncles, or cousins can apply to become guardians when parents are unable to care for the child. Courts require evidence of a stable relationship and proof that guardianship would serve the child’s best interests.
What is the difference between guardianship and parenting time?
Guardianship is about legal status and major decision-making authority, while parenting time is about the actual time a child spends with each parent or guardian and who provides their day-to-day care during that time.
How does the court decide which parent the child lives with?
Courts base residential arrangements on the best interests of the child, considering factors such as the child’s safety, emotional ties, history of care, and each parent’s ability to meet the child’s needs and support ongoing relationships. No single factor, including income or parental status, automatically decides the case.
References
- Appendix C: Canadian Custody and Access Legislation — Department of Justice Canada. 2002-06-01. https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/flc2002/flc2002c.html
- Child Custody Jurisdiction in Canada — International Divorce (legal commentary). 2019-01-01. https://international-divorce.com/child_custody_jurisdiction_canada/
- Legal Guardian Meaning in Canada — DLegal Law Office. 2023-04-10. https://www.dlegal.ca/post/legal-guardian-meaning/
- Dependent minors – Guardianship protocol — Immigration, Refugees and Citizenship Canada. 2017-10-20. https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/about-refugee-system/how-system-works/guardianship.html
- International Guardianship by Country: Canada — International Guardianship Network. 2015-01-01. https://www.international-guardianship.com/pdf/GBC/GBC_Canada.pdf
- Legal Guardianship and Parenting After a Parent’s Death — Shim Law (Alberta family law firm). 2021-05-15. https://shimlaw.ca/what-happens-to-child-custody-and-guardianship-in-canada-when-a-parent-dies/
- How can you become a child’s guardian? — Family Law in BC (Legal Services Society of BC). 2022-09-30. https://www.familylawinbc.ca/children/parenting-guardianship/guardianship/how-can-you-become-childs-guardian
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