How Child Custody is Decided in British Columbia

Decision-Making Responsibilities & Custody in British Columbia

In British Columbia, “child custody” and “access” are now called “parenting responsibilities” and “parenting time” in legal documents. This removes some of the negative connotations associated with the terms used previously.

“Custody” is still widely used in general conversation, however. It refers to the rights and responsibilities of parents—notably, to provide day-to-day care of a child and make decisions in the child’s best interests concerning important matters like education, healthcare, and religion.

The preference in BC after a marriage ends is for shared parenting. This is where both parents have regular and continuing contact with the child, but each case is decided based on the circumstances. A parent who lives with a child at least 60 percent of the time may be referred to as the primary caregiver, but the other parent has the right to “parenting time” in most cases.

Types of custody in British Columbia

British Columbia recognises two primary types of child custody:

Joint Custody

Joint custody (“shared parenting”) is where both parents share the decision-making responsibilities for their child. Both parents are actively involved in the main aspects of the child’s life, collaborating and taking mutual responsibility for the child’s development.

Sole Custody

Sole custody (“primary care”) is where one parent is primarily responsible for making the major decisions regarding the child’s upbringing, but the “non-custodial” parent usually still enjoys visitation rights.

When a couple has multiple children, the court may order split custody. This is where one or more children reside primarily with one parent while the other child or children live with the other parent.

Factors and considerations that influence child custody

When making child custody decisions in British Columbia, the court will consider the following factors…

The best interests of the child

The fundamental principle underpinning every decision concerning the welfare of a child in BC is the child’s best interests. The courts must protect the child’s well-being and welfare. This obligation even takes precedence over the rights or wishes of the parents, though solutions that incorporate both are generally sought.

Ultimately, the court will seek to provide a stable, secure, and nurturing environment for the child with arrangements that offer the best possible opportunity to develop physically, emotionally, and mentally.

Parenting plan

If the parents can present a viable parenting plan to the court demonstrating how it meets the child’s best interests, the court will likely approve the arrangements.

Developing a parenting plan requires parents to collaborate on decisions concerning their roles in the child’s life. This includes a detailed “parenting time” schedule covering holidays and special occasions.

In some cases, parents are unable to agree on a parenting plan. The court must then intervene and impose parenting arrangements in the child’s best interests.

The parent-child and parent-parent relationships

The existing relationship between the child and both parents is an important consideration for the BC courts when deciding child custody arrangements.

The courts will consider the following:

• The level of involvement of both parents in the child’s life.
• The emotional bond between the child and each parent.
• The level of support offered by each parent to the child.
• The history of caregiving in the family.
• The ability of the parents to collaborate in the best interests of the child.
• The level of communication between the parents.
• Any negative influences, such as abusive behavior or addictions, which could impact the child’s well-being.

The stability offered by the parents

The British Columbia courts value stability highly in child custody decisions. In determining how stable the child’s environment will be, the courts will consider the present living situations of both parents, including the home environment, school proximity, and the availability of necessary amenities to meet the child’s needs.

The child’s wishes

Another important factor in some child custody cases is the child’s wishes and stated preferences. However, this depends on the age and maturity of the child. The wishes of teenage children usually carry more weight than those of a younger child, who cannot express a meaningful opinion. Judges are also aware of the potential for parents to “manipulate” a young child’s opinion in their favour.

When is a parent granted sole custody in BC?

The BC courts generally consider shared parenting and “joint custody” to be in the child’s best interests. However, if evidence shows that this arrangement could harm the child, BC judges may award sole custody to one parent. Typically, this might apply in the following types of situations:

• One parent is deemed unfit due to addiction, mental illness or a history of abuse.
• One parent has abandoned their child.
• One parent is deceased.
• One parent is incapable of childcare due to an incapacitating physical or mental illness.

Child custody and father’s rights in BC

In British Columbia, a father has the same parental rights and responsibilities as the mother. However, statistics show that mothers are awarded primary parenting of the children in almost 80 percent of separations in Canada—and, despite the equal rights, 50/50 parenting arrangements do not always follow.

This is especially the case if there are any question marks over a father’s parenting ability or fitness to care for the child, or there is any suggestion that spending time with the father is not in the child’s best interests.

In marriages, the husband is presumed to be the child’s father. If the parents are unmarried, however, the father may need to prove paternity before enjoying paternal rights.

Parents moving with their child after separation

Whether a parent can move long-distance (overseas or to another province) with their child after separation depends on the existing custody arrangement. The “best interests of the child” standard still applies to relocations. The other parent’s rights must also be considered, including their right to spend time with the child.

As such, the Supreme Court of Canada has determined that a custodial parent cannot automatically move a child anywhere without the consent of the other parent.

No major relocation should, therefore, be attempted without informing and then discussing with the other parent. The non-primary caregiving parent may object to the move if it limits the time that they can spend with the child.

It is generally best for parents to seek legal advice before relocating, as it could create legal issues. The court will usually require a detailed and acceptable custody plan to approve the relocation. This should take into account not only the best interests of the child and the rights of the other parent but should also include:

• An evaluation of the facilities, resources, and support available in the new location.
• A comparison of the costs of living.
• An assessment of the health care and education options for the child.
• An assessment of the cultural environment and economy.

If the move is opposed by the other parent, who provides evidence that it is either not in the child’s best interests or breaches his/her parental rights, or both, the relocation may be refused by the court. If you’re considering child custody after a separation in the Langley area of British Columbia, DSG Family Law offers a free and confidential initial consultation to assess your situation and outline your legal options. Speak with our family lawyers today.