View source for Guardianship, Parenting Arrangements, and Contact

==Common questions==

===Can a child decide who to live with?===
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.

===How does a court consider a child’s wishes?===
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.

===What is a parenting assessment?===
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.

===Who can be a guardian of a child?===
The [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec39_smooth ''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, the parent with whom the child lives is treated as 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.

===What’s involved in applying to become a guardian of a child?===
If you apply to court to become a guardian, the [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec51_smooth 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 [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/courthouse-services/court-files-records/court-forms/family/pfa733.pdf?forcedownload=true guardianship affidavit] that provides information about any children that are or have been in your care (an affidavit is 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  
* getting a record check from the BC government’s [https://www2.gov.bc.ca/gov/content/safety/crime-prevention/protection-order-registry protection order registry].  

===Do I need a lawyer to work out parenting arrangements?=== 
You don’t need a lawyer. But you should get legal advice and representation where possible. See who can help, below.

{| class="wikitable"
|align="left"|'''Options to consider'''
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 [https://unbundlinglaw.peopleslawschool.ca/ unbundlinglaw.ca].
|}

===Are there options to avoid going to court?===
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. (In fact, at some Provincial Court locations, meeting with a family justice counsellor is one of the first steps in the court process.) 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 and Collaborative Practice|mediation, collaborative negotiation, and arbitration]].

{| class="wikitable"
|align="left"|'''Some exceptions'''
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.
|}

===Are orders and agreements about children final?===
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.

===What can I do if the other parent won’t follow a court order?===
The [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec230_smooth ''Family Law Act''] has rules about enforcing parenting and contact orders (and agreements too). How an order is enforced depends on whether it was made in Provincial Court or Supreme Court. Either court can order police to help with enforcement in special circumstances. 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.

{| class="wikitable"
|align="left"|'''Self-help guides'''
Legal Aid BC’s Family Law in BC website has [https://family.legalaid.bc.ca/bc-legal-system/court-orders/enforce-order-or-agreement-made-bc free step-by-step guides about enforcing orders and agreements] in Provincial Court and Supreme Court.
|}

===What if a parent wants to move after separation?===
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'', where there is a written agreement or court order about parenting arrangements, someone who wants to relocate has to give '''60 days’ written notice'''. The notice must be given to anyone who is a guardian of the child or has contact with the 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 [https://www.justice.gc.ca/eng/fl-df/divorce/nrf-fad.html 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 [https://www.justice.gc.ca/eng/fl-df/divorce/orf-fod.html 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.