Guardianship, Parenting Time and Decision-Making: BC's Version of 'Custody'

If you are separating and searching for "child custody in BC," you may be surprised to learn that the word barely appears in BC law. Both the provincial Family Law Act and the federal Divorce Act use different terms, and knowing them makes it easier to understand your options and talk with the other parent.

This article explains what guardianship, parental responsibilities, parenting time and contact mean, how the best-interests-of-the-child test works, and why neither law starts from a 50/50 presumption.

Search for child custody in BC and you will find plenty of US-style advice about "sole custody" and "joint custody." BC's Family Law Act, which governs most parenting issues in the province, uses different words. Instead of asking who has custody, it asks who is a guardian, which parental responsibilities each guardian has, and how the child's time is shared. Guardians can share all of their responsibilities or divide them up, rather than treating parenting as one bundle held by one parent.

Guardianship: who is responsible for the child

Under the Family Law Act, "guardianship" describes responsibility for a child. While parents live together, and after they separate, each parent is generally the child's guardian. A few points often surprise people:

• Separation doesn't end guardianship. Each parent remains a guardian after separation unless the parents agree, or a court orders, that one parent is not a guardian.
• A parent who has never lived with the child is treated differently. That parent is not a guardian unless the other parent agrees they are, or they regularly care for the child.
• Other people can become guardians. A grandparent or another relative can sometimes be a guardian, but only with a court order naming them as one.
• You can plan ahead. A guardian can appoint someone to become the child's guardian after the guardian's death, for example in a will. The appointment has formal signing and witnessing requirements, which our article on signing a valid will in BC explains.

Parental responsibilities: who makes which decisions

"Parental responsibilities" is the Act's list of what guardians do for a child. Only guardians can have them. The list includes:

• day-to-day care, control and supervision of the child
• deciding where the child lives and with whom the child associates
• decisions about education and extracurricular activities
• the child's cultural, linguistic, religious and spiritual upbringing
• consenting to medical and dental treatment
• applying for a passport or licence for the child

Unless an agreement or court order allocates them differently, each guardian may exercise all parental responsibilities, in consultation with the other guardians unless consultation would be unreasonable or inappropriate. Parents can also divide responsibilities: one guardian might handle medical appointments while both decide together on schooling.

The Family Law Act has no "sole custody" category. The closest equivalent is an agreement or order that gives some or all parental responsibilities to one guardian.

Parenting time and contact

Parenting time is the time a child spends with a guardian under an agreement or order. During their parenting time, a guardian has day-to-day care of the child and makes day-to-day decisions.

Contact is the time a child spends with someone who is not a guardian, such as a parent who is not a guardian, a grandparent or another relative. Contact can be set out in an agreement, and a court can grant contact to any person if it is in the child's best interests, including requiring that contact or transfers be supervised.

The best-interests test, and why there is no automatic 50/50

Every agreement or order about guardianship, parenting arrangements or contact must consider the best interests of the child only. The parents' wishes, and fairness between the parents, are not the test. The Act lists factors that must be considered, including:

• the child's health and emotional well-being
• the child's views, where appropriate
• the child's relationships with the important people in their life
• the history of the child's care and the child's need for stability, given their age and stage of development
• each person's ability to exercise their responsibilities
• the impact of any family violence on the child's safety and well-being

An agreement or order must also protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

Many parents assume the law starts from an even split. It does not. The Family Law Act says no particular arrangement is presumed to be in a child's best interests, including that parenting time or parental responsibilities should be shared equally, or that decisions should be made together or separately. Equal time may suit some children; it just isn't the starting point.

Married and divorcing? The Divorce Act's terms

If you were married and are getting divorced, parenting issues can be decided under the federal Divorce Act. Since March 1, 2021, it uses these terms:

• Decision-making responsibility: responsibility for significant decisions about a child's well-being, including health, education, culture, language, religion and spirituality, and significant extracurricular activities. It can be allocated to either spouse, to both, to another person, or to a combination.
• Parenting time: the time a child spends in a person's care, whether or not the child is physically with that person the whole time.
• Contact: time with someone other than a spouse, when a court makes a contact order.

The Divorce Act also uses a best-interests test, giving primary consideration to the child's physical, emotional and psychological safety, security and well-being. It tells the court to give effect to the principle that a child should have as much time with each spouse as is consistent with the child's best interests. That principle is tied to the child's best interests; it is not a rule that time must be split equally. Our guide on how to get a divorce in BC covers the divorce process itself.

Putting a parenting arrangement in place

Parents can set out guardianship, parental responsibilities and parenting time in a written agreement, often as part of a broader separation agreement, or ask a court to decide. If you are just starting out, our first-steps checklist for separating in BC covers what to sort out early. Common traps include:

• Borrowing US-style wording. An agreement that talks about "custody" and "access" can leave both parents unsure what they actually agreed to under BC law.
• Leaving decision-making vague. Spell out who decides what, and how you will resolve disagreements.
• Forgetting other important people. Grandparents and other relatives may need contact provisions of their own.

Separating with children? Get clear on your parenting arrangements before you sign anything

Our family lawyers can explain how guardianship, parental responsibilities and parenting time apply to your family, help you negotiate and draft a parenting agreement, and represent you in court if you and the other parent cannot agree.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.