Parenting Orders, Guardianship, and Contact (3:XI)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 18, 2021.

A. General

Disputes over parenting time of minor children are often the most difficult issues to resolve during the breakdown of a marriage or other relationship. Parenting time decisions can always be changed, however, courts rarely make such changes. Thus, the decision about who gets interim parenting time is particularly important. Children usually stay with the parent who has provided primary care in the past and who can spend the most time with them. Sometimes, courts will order joint parenting time on an interim basis so that neither parent’s position is prejudiced.

The best interests of the child is the only consideration in determining parenting time and contactand parenting arrangements.

In addition to parenting time, courts can also make decisions regarding guardianship of minor children. Guardianship gives a parent or other person “a full and active” role in determining the course of a child’s life and upbringing (see e.g. Charlton v Charlton, [1980] BCJ No 22). There is considerable overlap between the two, but it is useful to note that while having parenting time usually includes having guardianship, the reverse is often not true. This distinction is impacted somewhat by the FLA as the term “Guardianship” subsumes all the rights and responsibilities of a parent and there is no longer reference to “Custody”.

The case law on parenting time and guardianship has developed to the point where there is a presumption in favour of joint parenting time or both parents being guardians(although there is no legislative presumption). A parent seeking sole parenting time will generally have to show that there is a serious defect in the other person’s parenting skills, that the other person is geographically distant, or that the parents are utterly unable to communicate without fighting before the Court will consider granting such an application, and in the last case, the Court may explore other options such as Parenting Coordination or parceling out decision making and responsibilities to address the communication issue instead of granting sole parenting time to one parent.

B. Legislation

1. Divorce Act

The DA only speaks of contact and parenting time. Under s 16, the Supreme Court may make an order for parenting time. This order will supersede any existing FLA orders, which cover parenting time, contact, and guardianship, and can be registered for enforcement with any other Superior Provincial Court in Canada. The Supreme Court can also grant interim parenting time before a divorce action is heard.

The DA applies only to married couples. Under the Act, the person making the application for parenting time must have been “habitually resident” in the province for at least one year prior.

The court will only consider the best interest of the child in the course of making a parenting order or contact order and when allocating parenting time (DA s 16(1)). Subsections 16(2-6) outline the factors under consideration when “best interest of the child” is assessed. Subsection 16(4) outlines the role of family violence in assessing the best interests of the child.

Amendments to the DA resulted in changes to the terms of guardianship:

• Replacing of the terms “custody” and “custody order” with “parenting time” and “parenting order”.
• Using the term “contact order” to characterize time spent with someone other than a spouse, including grandparents.
• Adding the term “decision-making responsibility” to define a non-exhaustive list of areas of significant weight and how decisions about those areas must be made (with the “best interests of the child” in mind).

The aim of these changes is to emphasize the “best interests of the child” by focusing on relationships with children.

2. Family Law Act

Among a plethora of changes to the general family law in BC, the Act makes the following changes to the law surrounding guardianship:

• Replace the terms “custody” and “access” with “guardianship”, “parenting time”, and “contact”.
• Define “guardianship” through a list of “parental responsibilities” that can be allocated to allow for more customized parenting arrangements.
• Provide that parents retain responsibility for their children upon separation if they have lived together with the child after the child’s birth. (Note: this does not mean that the law presumes an automatic 50-50 split of parental responsibilities or parenting time.) If they have not, the parent with whom the child lives is the guardian.
• Under the FLA, the terms custody and access are no longer used – only guardianship will be considered.
• Additionally, the “best interests of the child” is no longer the paramount consideration under the FLA; it is the only consideration.

C. Courts

1. Supreme Court

The Supreme Court has jurisdiction to deal with all matters relating to parenting time, guardianship and contact with children, pursuant to the DA, the FLA, and the CFCSA. Although, the Court almost never deals with the CFCSA unless there is the matter of adoption to be considered. The Supreme Court also has jurisdiction over orders restraining contact or entry to the matrimonial home.

The Supreme Court has parens patriae jurisdiction over all children in the province. In operation, this can allow the Court to transcend the statutory letter of the law in drafting orders that best represent the best interests of the child.

A written agreement about parenting time or guardianship may be given the force of a court order under section 44 of the FLA. Any orders made under the FRA are still in force. An order made under the DA can be registered for enforcement in any other province’s Supreme Court registry.

2. Provincial Court

The Provincial Court has jurisdiction to deal with all matters relating to parenting time, guardianship and contact with children, and the Child, Family and Community Service Act [CFCSA]. This includes restraining orders but does not include orders restraining entry to the matrimonial home. A written agreement about parenting time or guardianship may be given the force of a court order, or s 44 of the FLA, if it is filed in court.

D. Parenting Time

Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the Family Law Act is in force, do not need special transition sections. Section 4 of the Interpretation Act provides a default rule that the Act will be used upon it becoming effective, so cases started under the FRA will be determined under the FLA.

In the absence of a court order or a written agreement, parenting time of a child remains with the person with whom the child usually resides. One must bear in mind that the Act does not touch on day-to-day life until it is invoked, usually by filing a lawsuit or by making an application.

1. Factors in Awarding Parenting Time

The factors that the Court must consider in determining the “best interests of the child” are set out in, s 37 of the FLA:

• (a) The child's health and emotional well-being;
• (b) The child's views, unless it would be inappropriate to consider them;
• (c) The nature and strength of the relationships between the child and significant persons in the child's life;
• (d) The history of the child's care;
• (e) The child's need for stability, given the child's age and stage of development;
• (f) The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise their responsibilities;
• (g) The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
• (h) Whether the actions of a person responsible for family violence indicate that the person may be impaired in their ability to care for the child and meet the child's needs;
• (i) The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
• (j) Any civil or criminal proceeding relevant to the child's safety, security or well-being.

and at s 16(1-6) of the DA:

• (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
• (2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being.
• (3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
  • (a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  • (b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
  • (c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
  • (d) The history of care of the child;
  • (e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  • (f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  • (g) Any plans for the child’s care;
  • (h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
  • (i) The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
  • (j) Any family violence and its impact on, among other things,
    • i. The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    • ii. The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
  • (k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.
• (4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
  • (a) The nature, seriousness and frequency of the family violence and when it occurred;
  • (b) Whether there is a pattern of coercive and controlling behaviour in relation to a family member;
  • (c) Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
  • (d) The physical, emotional and psychological harm or risk of harm to the child;
  • (e) Any compromise to the safety of the child or other family member;
  • (f) Whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
  • (g) Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
  • (h) Any other relevant factor.
• (5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
• (6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

These factors should not be viewed as a checklist. Rather, the discretionary, contextual, and complex nature of parenting time cases makes it more appropriate for the factors to be viewed holistically. Similarly, these factors do not necessarily form an exhaustive list of the factors to be considered. The best interests argument is often expansive, considering a range of factors illuminated at both the statutory and common-law level.

The Court will generally consider the child’s health and emotional well-being, his or her education and training and the love, affection and similar ties that exist between the child and other persons such as relatives and family friends. If appropriate, the views of the child will be considered. For a parenting time order relating to a teenager to be practical, it must reasonably conform to the wishes of the child (O’Connell v McIndoe (1998), 42 R.F.L. (4th) 77 (BCCA), Alexander v Alexander (1988), 15 R.F.L. (3d) 363 (BCCA)).

Other factors have emerged through the common law, including a preference that siblings remain together and a willingness to look into the character, personality and moral fitness of each parent. However, there is no presumption against the separation of siblings (P (AH) v P (AC), 1999 BCCA 203). The welfare of the child is not determined solely on the basis of material advantages or physical comfort, but also considers psychological, spiritual, and emotional factors (King v Low,(1985), 44 R.F.L. (2d) 113 (SCC)). The Court will take into account the personality, character, stability, and conduct of a parent, if appropriate (Bell v Kirk (1986), 3 R.F.L. (3d) 377 (BCCA)).

Agreements between parties regarding parenting time do not oust the Court’s jurisdiction. An agreement is important, but only one of several factors to be taken into consideration when determining the best interests of the child. The degree of bonding between child and parent is also taken into consideration. The biological link does not outweigh other considerations, but when all other factors are equal, the parenting time of the child is best served with the biological parents (L (A) v K (D),2000 BCCA 455; H (CR) v H. (BA), 2005 BCCA 277).

Race and aboriginal heritage are relevant considerations, but neither is determinative of parenting time alone. The importance of race differs in adoption cases, where it may be given more weight because the Court is making a decision about the child’s exposure to his or her race or culture (Van de Perre v Edwards, 2001 SCC 60). Aboriginal heritage is to be weighed along with other factors in a determination of a child’s best interests (H (D) v M (H), [1997] BCJ No 2144 (QL) (SC)).

Clients may wish to vary a parenting time order. The threshold for a variation of a parenting time or access order is a material change in the circumstances affecting the child. There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled to respect. The focus is on the best interests of the child, not the interests and rights of the parents (Gordon v Goertz, [1996] 2 SCR 27).

Section 211 of the FLA allows the Court to order an assessment by a psychologist of each party’s parenting abilities and relationship with the child. These reports are particularly important where the dispute over parenting time is bitter and unlikely to settle. An assessment provides the Court with an independent and neutral expert opinion. Where expert evidence would assist the Court, the Court can order an FLA Section 211 report (Gupta v Gupta, 2001 BCSC 649).

2. Types of Parenting Time Orders

NOTE: “Parenting time” is a term that only appears in the DA and so only applies to claims that are proceeding in Supreme Court under the DA.

a) Interim Orders

An interim order is a temporary order made once the proceedings have commenced but before the final order is pronounced. Courts will usually make interim parenting time orders while an action in divorce is underway, with an eye to the child’s immediate best interests. Courts tend to favour stability, so an interim order is likely to favour the party with parenting time at the time of the marriage breakdown. This presumption toward stability can give an interim order substantial weight in determining a final parenting time order.

b) Sole Parenting Time

Sole parenting time, in which one parent provides the primary residence and is mostly responsible for day-to-day care, can be granted in cases where the parents request such an arrangement, where they live far apart, or where relations between the parties are so poor as to preclude cooperation.

NOTE: The concept of “full parenting time” does not exist. A parent using this term is most likely referring to sole parenting time.

c) Joint Parenting Time

In joint parenting time, both parents have parenting time of the child. While the child may reside primarily with one parent, the parents cooperate in raising the child, acting as both joint custodians and guardians of the child. In British Columbia, there is a presumption toward joint parenting time.

d) Shared Parenting Time

“Shared parenting time” is a term used by the Federal Child Support Guidelines, but not by either the DA or the FLA. Shared parenting time is a form of joint custody in which the child spends an almost equal time with each parent. Typically, the child would be switching homes on a frequent basis, such as every few days or once a week. This usually requires that the parents live near one another and have good communication skill. It also requires that the child is able to adapt to living in two homes. Any agreement for shared parenting time will affect child support.

e) Split Parenting Time

“Split parenting time” is a term used by the Federal Child Support Guidelines, and not by either the DA or the FLA. On rare occasions, courts will order siblings to live with separate parents. This is usually a drastic solution, ordered only after an FLA section 211 report (a court-ordered report respecting the needs of a child, the views of a child, and the ability and willingness of one of the parents to satisfy the needs of a child) is submitted to the Court. A split parenting timeorder will affect child support.

3. Other Parenting Time Issues

a) Consent Orders

Where there is agreement on the terms of support or parenting time provisions, but no written agreement, a consent order may be made by the Court under s 219 of the FLA if the written consent of the party against whom the order is to be enforced has been obtained. The order can extend only to the terms consented to.

b) Enforcement of Parenting Time Orders

Where a parenting time order is in force, the Court may make an order prohibiting interference with a child. The Court may further order sureties and/or documents from the person against whom the order is made, and require that person to report to the Court for a period of time (FLA, s 183).

Under the FLA, police officer enforcement clauses can only be granted when there has been a breach of an order (s 231).

A child abducted and taken elsewhere within the province will be returned to their rightful custodian. Abduction is an offence under the FLA, s 188 that carries a possibility of criminal proceedings (Criminal Code, RSC 1985, c C-46, ss 280-281). The Criminal Code makes it an offence for a non-custodial parent to abduct a child. Where a parenting time order is in effect, abduction amounts to contempt of Court.

c) Parental Mobility (Under the FLA, this is referred to as Relocation which has separate considerations from that of Mobility under the DA)

Relocation is defined and explained under Division 6 of the FLA. It considers relocation of a child that can reasonably be expected to have a significant impact on the child’s relationship with his/her guardian(s) or other adults with which the child has a significant relationship (s 65). The guardian intending to relocate with the child must provide 60-day written notice to all other guardians and persons having contact with the child (s 66). The notice must include the date of the relocation, and the name of the proposed location. Exemptions to these requirements can be granted by the Court if they are satisfied that the notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child (s 66(2)).

The child’s other guardian(s) can object to the relocation within 30 days of receiving the notice. If an objection is made, the guardian requesting the relocation must satisfy the court that (s 69(4)(a)):

• (i) The proposed relocation is made in good faith, and
• (ii) The relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life

When considering the good faith requirement, the Court must consider (s 69(6)):

• (a) The reasons for the proposed relocation;
• (b) Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
• (c) Whether notice was given under section 66 [notice of relocation];
• (d) Any restrictions on relocation contained in a written agreement or an order.

Issues of parental mobility may arise in conjunction with parenting time issues. That is, one parent may wish to relocate away from another parent with whom they share parenting time . In Gordon v Goertz, [1996] 5 WWR 457 (SCC), the Supreme Court of Canada set out the basic principles for the DA. Once the parent applying for the change meets a threshold requirement of demonstrating a material change in the circumstances affecting the child, the Court is required to begin a fresh inquiry into what is in the best interests of the child. Factors to be considered include: the desirability of maximizing contact between the child and both parents, the disruption to the child, and the child’s views.

One v One, 2000 BCSC 1584, also a DA case, identifies the following list of factors to be considered in determining whether a proposed move is in a child’s best interests:

1. The parenting capabilities of and the child’s relationship with parents and their new partners;
2. Employment, security and prospects of the parents and, where appropriate, their partners;
3. Access to and support of extended family;
4. The difficulty of exercising the proposed access and the quality of the proposed access if the move is allowed;
5. The effect of the move on the child’s academic situation;
6. The psychological and emotional well-being of the child;
7. The disruption of the child’s existing social and community support and routine;
8. The desirability of the proposed new family unit for the child;
9. The relative parenting capabilities of either parent and the respective ability to discharge parenting responsibilities;
10. The child’s relationship with both parents;
11. The separation of siblings;
12. The retraining or educational opportunities for the moving parent.

E. Access

"Access" is the term used under the DA. As of March 1, 2021, the term “access” will be removed from the DA, and the term “contact order” will be used to describe arrangements for non-guardians. Under the FLA, the terms are "parenting time" for guardians, or "contact" for non-guardians.

Proceedings regarding parenting arrangements or contact that have been started, but not determined, before the FLA came into force (March 18, 2013), do not need special transition sections. Section 4 of the Interpretation Act provides a default rule that the Act will be used upon it becoming effective, so cases started under the FRA will be determined under the FLA.

Unless a parent poses a risk to the safety or well-being of the child, they will usually be allowed access or visiting rights. Courts can make an order for access and may view a custodial parent who denies access as acting against the best interests of the child.

NOTE: It is important to note that access is a distinct and separate issue from child support. Denial of access is not grounds to withhold support; nor is a failure to pay support grounds for withholding access.

1. Factors Considered in Making an Access Order

The overriding principle remains the best interests of the child. The courts will not be bound by the wishes of the child, although the child’s views can be a powerful factor. When the FLA came into force, it introduced an overarching consideration “to ensure the greatest possible protection of the child’s physical, psychological, and emotional safety.” It can be argued that this consideration is functionally in place already, however. The courts will look into several factors in making access orders. These include:

• The age of the child: older children will be allowed longer visits, but courts will also consider the wishes of children over 12 who may not wish to see the non-custodial parent;
• Distance between homes: if the distances are great, courts may order longer stays;
• Conduct of the non-custodial parent: access can be denied for reasons such as alcoholism, abuse, past attempts to abduct the child, or attempts to alienate the child from the custodial parent;
• Health of the non-custodial parent: if health problems limit the non-custodial parent’s ability to care for the child, access may be limited;

2. Types of Access Orders

a) Interim Orders

After making an interim parenting time order, a court will often grant access on an interim basis. Usually, such an order will favour the status quo, in order to minimize disruption for the child.

b) Specified and Unspecified Access

Specified orders set out the times and places at which the non-custodial parent must have access to the child. Specified orders are generally preferred. Unspecified access is less common and is ordered when the parents are willing to accommodate one another.

c) Conditional Access

Courts may impose requirements, such as not smoking or using drugs or alcohol in the presence of the child. If the parent fails to meet the condition, access may be denied.

d) Supervised Access

Courts may order visits to be supervised by a designated third party if there are concerns about abuse, abduction, mental and physical handicaps or attempts to alienate the child from the custodial parent. It is up to the custodial parent to demonstrate that access should be supervised.

NOTE: There are no filing fees nor does a person need legal representation in Provincial Court, making it a more accessible option for many clients.

3. Extra-provincial Parenting Time and Access Orders

Under the FLA, the Court may exercise its jurisdiction to make parenting time and access orders if one of the following conditions is met:

1. The child was “habitually resident” in BC (s 74(2)(a)).
2. If the child is not habitually resident in B.C., the Court must at the commencement of the application order be satisfied that (s 74(2)(b)):
   • i. The child is physically present in British Columbia when the application is filed,
   • ii. Substantial evidence concerning the best interests of the child is available in British Columbia,
   • iii. No application for an extraprovincial order is pending before an extraprovincial tribunal in a place where the child is habitually resident,
   • iv. No extraprovincial order has been recognized by a court in British Columbia,
   • v. The child has a real and substantial connection with British Columbia, and
   • vi. On the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia;
3. The child is physically present in British Columbia and the court is satisfied that the child would suffer serious harm if the child were to (s 74(2)(c))
   • i. Remain with, or be returned to, the child's guardian, or
   • ii. Be removed from British Columbia.

B.C. courts are required to enforce extra-provincial orders (s 75) with certain exceptions (s 76). Such exceptions include situations where the child would suffer serious harm if they were returned to the guardian or leaving British Columbia (s 76(1)(a)).

If one spouse is not in B.C., the only B.C. Court that the B.C. residing spouse can proceed in is the B.C. Supreme Court, because the Provincial Court has no jurisdiction outside of the province.

F. Guardianship

Guardianship may be the most important aspect of any legal arrangements concerning the care and control of the children. Guardianship encompasses the whole bundle of rights and obligations involved in parenting a child, including making decisions about the child’s school, moral instruction, religion, health care, dental care, extracurricular activities, etc.

When they are still together, both parents are presumed to be guardians, pursuant to a statutory presumption set out in section 39 of the FLA, playing a “full and active role” in the upbringing of the child (see e.g. Charlton v Charlton). Upon marital breakdown, this can change either by agreement or by order of the Court.

Under the FLA, guardianship is primarily governed by sections 39, 41, and 42.

Parents can also appoint a guardian in a will. If the parents are both dead or have abandoned the child, the Public Guardian and Trustee becomes the child’s guardian.

While a child’s parents are living together and after the child’s parents separate, each parent of the child is presumed to be the child’s guardian (s 39). However, an agreement may be made to provide that a parent is not the child’s guardian after the parents separate or when the parents are about to separate.

Section 39 of the FLA also provides for three other scenarios under which a parent is presumed to be a guardian. A parent who has never resided with a child is not the child’s guardian unless:

• 1) There is an agreement made under section 30 of the FLA,
• 2) The parent and all of the child’s guardians make an agreement providing that the parent is also a guardian, or
• 3) The parent regularly cares for the child.

Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship.

A person who is not a parent or a parent who is not a guardian may become a guardian of the child by court order, pursuant to section 50 of the FLA. The person applying to court for a guardianship order must demonstrate why it would be in the best interests of the child and provide notice to all of the child’s guardians and adults with whom the child resides (s. 51). If the child is over 12, the child’s written consent is also required. The evidentiary requirements to obtain such an order are set out under the Supreme Court Family Rules Rule 15-2.1 and the Provincial Court Family Rules Rules 26, 51, and 172. The applicant must provide:

• 1. An affidavit setting out the following information:
  • a. The nature and length of the applicant’s relationship with the child,
  • b. The child's living arrangements,
  • c. A detailed plan for how the applicant going to care for the child,
  • d. Information about any other children in the applicant’s care,
  • e. Information about any incidents of family violence that may affect the child, and
  • f. Information about any family or child protection court proceedings the applicant has been involved in;
• 2. A Ministry of Children and Family Development records check;
• 3. A Protection Order Registry records check; and
• 4. A criminal record check.

Effective May 2021, the repealed Provincial Court (Family) Rules were replaced by the new Provincial Court Family Rules found at https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/120_2020. The Guardianship Affidavit (Form 5) is included in the new Rules and requires identical information to what is stated above (see Rules 26, 51, and 172).

If an application is made for guardianship of a treaty First Nation’s child, the child’s First Nation’s government must be served notice of the application and has standing in the proceeding (ss. 208 and 209).

At the time of birth, the two parents of a child are presumed to be their biological parents unless the child was born as a result of assisted reproduction (section 26, FLA). Assisted reproduction has, at present, always included the use of one or more of donated eggs, donated sperm, and the cooperation of a woman who is willing to carry the baby to term. Section 24 of the FLA clarifies that a donor of eggs or sperm is not the parent of a child on the basis of their biological contribution alone – donors cannot be made to pay child support unless there is some other connection to the child which justifies holding that the person is a parent under the FLA. If a donor wishes to be regarded as a parent, written agreements can be drafted and signed before the child’s birth which would substantiate their parental claim under the FLA. Unlike donors, surrogates are presumed to be a parent of the child under the FLA since they are the birth parent. However, this presumption can be overcome by the intended parents and the surrogate mother signing a written agreement before the child is conceived which states that the surrogate mother will not be a parent to that child. Without such an agreement, the surrogate and sperm-providing parent would be the presumed parents.

Section 41 of the FLA lists out the parental responsibilities with respect to a child:

• (a) Making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
• (b) Making decisions respecting where the child will reside;
• (c) Making decisions respecting with whom the child will live and associate;
• (d) Making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;
• (e) Making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;
• (f) Subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
• (g) Applying for a passport, licence, permit, benefit, privilege or other thing for the child;
• (h) Giving, refusing or withdrawing consent for the child, if consent is required;
• (i) Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
• (j) Requesting and receiving from third parties health, education or other information respecting the child;
• (k) Subject to any applicable provincial legislation,
  • (i) Starting, defending, compromising or settling any proceeding relating to the child, and
  • (ii) Identifying, advancing and protecting the child's legal and financial interests;
• (l) Exercising any other responsibilities reasonably necessary to nurture the child's development.

Section 42 of the FLA defines parenting time as time that a child is with a guardian. During this parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

Additionally, Division 6 of Part 4 of the new FLA states that if you are a child’s guardian and you want to relocate with the child, you must give any other person who can contact the child 60 days’ notice which includes both the date of the relocation and the name of the proposed location. The Court may not grant an exemption to give notice if it is satisfied that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child. Once notice is given, a child’s guardians and persons having contact with the child must use their best efforts to resolve any issues relating to the proposed relocation. The proposed relocation may occur unless another guardian of the child files an application to prohibit the relocation within 30 days of receiving notice. The Court will make its decision based on s 37 of the FLA considering what would be in the best interests of the child.

1. Terminating Guardianship

Sole guardianship and joint guardianship are not terms used in the FLA. The parents or a court may decide that one parent should be the only guardian of the child. This terminates the presumption of guardianship for the other parent. The parents may terminate one parent’s guardianship via written agreement (s. 39). The court can terminate one parent’s guardianship pursuant to section 51 of the FLA. This is an extreme step, taken only when one parent has been shown to be either uninterested in or incapable of proper parenting.

2. Both Parents are Guardians

Under the FLA, the standard guardianship agreement, wherein both parents are or remain guardians, is structured such that parental responsibilities and parenting time are specified in the agreement, with specific provisions which govern the allocation of parenting responsibilities. If no such provisions are included, then each party may exercise all parental responsibilities in consultation with the other guardians (FLA section 40(2)).

The following are standard elements typically included in guardianship agreements:

• a) Both parents equally have all of the parental responsibilities of guardians [with any exceptions listed].
• b) A guardian, after becoming aware of important information relating to the child not known to the other guardian(s), must immediately notify the other guardian(s) about that information.
• c) Subject to other clauses in the agreement, both guardians must consult about any important decisions that must be made and try to reach agreement concerning these important decisions.
• d) During parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child provided that the guardian must advise the other parent of any matters of a significant nature affecting the child.
• e) Optionally, the agreement may specify that if one guardian dies, the remaining guardian will assume all parenting responsibilities.

Also, agreements will typically include a dispute resolution clause which governs the situation where the guardians cannot reach agreement over one of their shared responsibilities. The options include:

• a) One parent has the final word, however the other party can apply to court if they disagree with the deciding parent. In particularly high-conflict cases, giving one parent decision-making authority may be the only solution (Friedlander v Claman, 2015 BCSC 2409);
• b) The parties go to mediation, wherein the mediator will have the final word if the parties cannot agree;
• c) The parties go to a parenting coordinator who has decision-making authority;
• d) Other collaborative law processes; or
• e) The parties can resolve the matter in court.

G. Parenting Responsibilities and Parenting Time

1. Family Law Act

According to section 42 of the FLA, parenting time refers to the amount of time that a child spends under the care of a guardian, as determined by an order or agreement. When the child is under their care, guardians assume responsibility for day-to-day care and decision-making for the child (please see section 41 of the FLA for a range of parenting responsibilities). Parenting time and responsibilities may not be allocated equally amongst guardians, and guardians may or may not be required to consult with one another depending on the terms of the order or agreement.

Decisions as to parenting time and responsibilities are determined according to the best interests of the child only. Section 40 of the FLA notes that the equal division of parenting time and parenting responsibilities is not presumed to be in the best interests of the child, nor should it be presumed that it is inherently better to make decisions separately or jointly. Guardians should not expect that they are entitled to equal sharing of parenting time or parenting responsibility. The best interests of the child are determined by weighing the following non-exhaustive list of considerations set out in section 37(2) of the FLA:

• (a) The child's health and emotional well-being;
• (b) The child's views, unless it would be inappropriate to consider them;
• (c) The nature and strength of the relationships between the child and significant persons in the child's life;
• (d) The history of the child's care;
• (e) The child's need for stability, given the child's age and stage of development;
• (f) The ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
• (g) The impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
• (h) Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
• (i) The appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
• (j) Any civil or criminal proceeding relevant to the child's safety, security or well-being.

A person’s conduct is considered only where their conduct stands to impact any of the above considerations regarding the best interests of the child.

2. Divorce Act

Under the DA, the term “parenting time” is used to refer to matters concerning the care, upbringing, and other relevant details pertaining to a child (s. 2); parenting time is designated by what is referred to as a parenting order under the current DA. The provisions of section 16 give a brief overview of how an order for parenting is decided and issued, including who may apply for an order, who may issue an order, and several of the court’s considerations when issuing such orders.

As of March 1, 2021, updates to the DA mean that the term “custody” was replaced by “parenting time” and “parenting responsibilities” to emphasize the importance of the needs of the child rather than on the child as a possession of a parent. Similarly, “order for custody” was replaced by “parenting order.” Section 16(1) through 16(10) were repealed and replaced with a new section entitled “Best Interests of the Child”. This section includes more expansive provisions which focus on determining parenting time and responsibilities based on the best interests of the child. The new section 16(3) provides guidance as to the factors to be considered, including:

• (a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
• (b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
• (c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
• (d) The history of care of the child;
• (e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
• (f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• (g) Any plans for the child’s care;
• (h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
• (i) The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
• (j) Any family violence and its impact on, among other things,
  • i. The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
  • ii. The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
• (k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The updated DA also sets out the required contents of a parenting order (16.1(4)). A parenting order allocatse parenting time—and, correspondingly day-to-day decision-making responsibilities—and may include a schedule and permitted means of communication between a child and a person with parenting responsibilities. Parenting orders submitted by the parties must be mutually agreed to when submitted, though a court may modify according to the best interests of the child.

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