The words BC uses for parenting
BC law does not use “custody” and “access”. Under the Family Law Act, a parent who has lived with the child is generally a guardian. Guardians share parental responsibilities, which cover day-to-day care and the larger decisions about school, health, activities and where the child lives, and each has parenting time. Other people, such as grandparents, can be given contact. Married parents with a case under the federal Divorce Act will see “decision-making responsibility” in place of parental responsibilities; the ideas are close.
Every agreement or order about children has to be based on the child’s best interests alone. The Act lists what goes into that, including the child’s health and emotional well-being, the child’s views where it is appropriate to consider them, the history of the child’s care, the child’s need for stability given their age, and the impact of any family violence. There is no starting presumption of equal time or equal decision-making. A schedule is built around the particular child. Our page on co-parenting responsibilities and the article on the best interests test go further.
Before anything is written down
Where separated parents have settled into an informal routine that has become a normal part of the child’s life, the Act says a guardian must not change it without consulting the other guardian, unless consultation would be unreasonable or inappropriate in the circumstances. Either guardian can also ask the court for directions on an issue affecting the child.
If a parent plans to change where a child lives before there is any agreement or order, and an application about parenting arrangements is made, the court looks at the reasons for the move alongside the child’s best interests. It is not allowed to ask whether the parent would move anyway without the child.
Moving house is not always a “relocation”
The relocation rules in the Family Law Act apply only where a written agreement or an order about parenting arrangements or contact is already in place, and only to a move that can reasonably be expected to have a significant impact on the child’s relationship with a guardian or another important person in the child’s life. A move a few blocks within Dunbar, keeping the same school and the same schedule, is unlikely to meet that test. A move to the North Shore, the Fraser Valley or another province may. Between those, the answer depends on the child, the schedule and the travel involved, and it is worth taking advice before giving or ignoring notice.
Where the relocation rules apply:
- The parent planning the move must give every other guardian, and anyone with contact, at least 60 days’ written notice of the date and the proposed new location.
- The court can excuse notice, in whole or in part, where giving it would risk family violence or where there is no ongoing relationship between the child and the other person. That application can be made without the other party present.
- After notice, everyone must use their best efforts to resolve the issues the move raises.
- The move can go ahead on or after the date in the notice unless another guardian, within 30 days of receiving it, applies for an order prohibiting it.
If the court has to decide, the burden depends on the existing schedule. Where the parents do not have substantially equal parenting time, the moving parent must show the move is made in good faith and comes with reasonable and workable arrangements to preserve the child’s other relationships; once that is shown, the law treats the move as being in the child’s best interests, and it is up to the other guardian to prove the contrary. With a roughly equal schedule, the parent who wants to move carries the whole burden, including showing that the child is better off. Good faith turns on the reasons for the move, whether it is likely to improve the child’s quality of life, whether notice was given and any restrictions in an existing agreement or order.
Married parents: the Divorce Act’s own notice rules
Where parenting orders are made under the Divorce Act, the federal rules govern moves, and they go further. A parent with parenting time or decision-making responsibility who intends to change their own or the child’s place of residence must give written notice of the date and the new address to the others with parenting time, decision-making responsibility or contact, even for a move that is not a relocation. For a relocation, the notice must be given at least 60 days ahead, on the prescribed form, with a proposal for how parenting time could work afterwards. The other parent has 30 days to object on the prescribed form or by application. Where the parents substantially follow an equal-time schedule, the parent who wants to move has to prove the move is in the child’s best interests; where the child spends the vast majority of time with the moving parent, the objecting parent has to prove it is not. The court can relieve a parent of the notice requirements, including where there is a risk of family violence.
The home and money while arrangements are worked out
The children’s arrangements and the property division are linked, because where the children live affects who needs the house. The rules on property are set by Part 5 of the Family Law Act. The starting rule is an equal split: on separation, family property and family debt are shared half and half, and it does not matter which spouse is the registered owner. What one spouse owned before the relationship, and inheritances or gifts that came to one spouse alone, are treated as excluded property, although the burden of proving the exclusion is on that spouse and an increase in value during the relationship goes into the shared pool. Spouses can agree on a different division, and a judge can order one where equal sharing would be significantly unfair. If property cannot be settled, the claim goes to the Supreme Court, whose Vancouver registry sits at 800 Smithe Street, about 8 km by road from the Dunbar Community Centre. Our property division page explains the steps.
The Federal Child Support Guidelines set a table amount from the payor’s income and how many children there are, with special or extraordinary expenses, such as qualifying child care or extracurricular costs, shared in proportion to income. A change in the parenting schedule can change the calculation, particularly where time becomes shared. See our child support page.
Which court hears a parenting case from Dunbar
Parenting arrangements and child support can be decided in the Provincial Court or the Supreme Court; divorce, and the division of property and pensions, belong to the Supreme Court.
A first Provincial Court filing belongs in the registry nearest the home where the child mainly lives; if no child issue is raised, it is the registry nearest the first filer’s home. Measured in a straight line from the Dunbar Community Centre, Robson Square in downtown Vancouver is about 6.2 km away and the Richmond courthouse about 8.6 km, so for most Dunbar addresses Robson Square may be the registry; the rule gives no method for measuring distance, so check with the registry before you file. Robson Square operates as an early resolution registry, so before most applications a parent must file a notice to resolve, give a copy to the other party, and complete a needs assessment, a parenting education program and at least one consensual dispute resolution session. Those steps do not apply to an application only about relocation, a protection order or a priority parenting matter, among other exceptions. The Vancouver Justice Access Centre, at 800 Hornby Street, provides those early resolution services.
Time limits and divorce
Applications about parenting and child support have no limitation date. Property, pension and spousal support claims do: married spouses have two years from the divorce judgment, and unmarried spouses two years from the day they separated. To divorce, a married couple needs a year living separate and apart, unless adultery or cruelty is proved, and one spouse must have been habitually resident in BC for the year before filing. The divorce becomes effective 31 days after judgment, later if there is an appeal, and earlier only by court order in special circumstances where both spouses undertake not to appeal. Our article on how long after separation you can claim assets and the divorce page have more.
Our family lawyers
Judith A. Janzen, principal and leader of the family practice, was called to the bar in 2000; she and Candace Cho, KC joined forces in 2012. Her colleagues in family law are Rupinder Shoker (called 2011), Susan Kim (called 2000; family and estate litigation, also in Korean), Rasjovan Dale, Mason Heller, Shivleen Sidhu, Katya Richardson and Louisa Ledesma. Profiles are on the team page.
If a separation also raises questions about a will or an estate, see our Dunbar estate lawyers.
Common questions
I want to move with the children from Dunbar to the North Shore. Can I?
If there is a written agreement or an order about parenting, and the move would significantly affect the children’s relationship with the other parent, it is a relocation. You must give at least 60 days’ written notice, and the other parent has 30 days to apply to stop it. Different rules apply if your parenting order was made under the Divorce Act.
We are only moving a few blocks. Do I need to give notice?
Under the Family Law Act, probably not, if the move will not significantly affect the children’s relationships. Under a Divorce Act parenting order, you must give written notice of any change of residence, with the new address.
Does the law start from 50/50 parenting time?
No. Neither statute presumes equal parenting time or equal decision-making. The schedule is decided on the child’s best interests.
Who keeps the house while we sort things out?
Either spouse can apply to the Supreme Court for an order letting them live in the family residence alone for a set time. That order does not change ownership, which is decided when property is divided.
How are family files charged?
At hourly rates. We go over the cost of a first meeting on the phone at (604) 900-2538.
