Best interests of the child

The Family Law Act and the Divorce Act say that parents and the courts must only consider the best interests of the child when making decisions about children.

The best interests of the child include:

your child’s health, safety, and emotional well-being;
your child’s cultural identity, language, and heritage;
your child’s views and preferences;
the love and affection between your child and other important people in their life;
your child’s needs, including the need for stability at their age and stage of development;
who looked after the child in the past and how well they looked after the child;
the ability of parents or others who want guardianship, parenting time, parental responsibilities, decision-making responsibility, or contact to care for and meet your child’s needs;
whether any arrangements that require you and the other parent to communicate and cooperate are appropriate;
whether there’s any family violence, and if so, the effect on your child’s safety, security, and well-being; and,
whether there are any court proceedings or orders relevant to the child’s safety, security, or well-being.

Always think about the best interests of your child when making decisions about them. If you can’t agree with the other parent about what’s best for your child, you can get help from a mediator to work out your disagreement outside of court. If you still can’t agree, you can go to court and ask a judge to decide.

Possible parenting arrangements

After you separate, you and the other parent can plan how to continue caring for your child. You can make an agreement about parenting arrangements.

Here are some examples of possible parenting arrangements:

The child lives with one parent most of the time, and this parent is responsible for making most decisions.
The child lives with one parent more of the time, and the parents make decisions jointly.
The child lives with each parent at least 40 percent of the time, and the parents make decisions jointly.
One or more of the children live with each parent, and the parents divide decisions between them.

Moving with a child

After separation, you might plan to move — with or without your child. A move that has a significant effect on your child’s relationship with a guardian, a person who has parenting time and decision-making responsibilities, or a person with contact, is called relocation.

If there’s a parenting or contact order or agreement in place, check to see if it talks about relocation.

If you want to relocate, you need to take certain steps. What you need to do depends on which law you use.

Under the Family Law Act, generally, if you’re a child’s guardian and you plan to relocate, with or without your child, you must give notice of your move to any other guardians and any person who has contact with the child. This means you must tell them where you plan to move and when, in writing, at least 60 days before you plan to move.
Under the Divorce Act, if you have parenting time or decision-making responsibility and plan to relocate, you must give at least 60 days’ written notice to anyone else who has parenting time, decision-making responsibility, or contact under a contact order. The notice must say when and where you plan to move and must also include your contact information. It must also include a proposal for new parenting arrangements or contact if the move happens.

If you have contact with the child, and you’re planning to move, the Divorce Act says that you must notify people who have parenting time or decision-making responsibility of your plan to move. You must give notice in writing, set out where and when you plan to move (as well as your contact information), and provide a plan for new contact arrangements. You must give notice at least 60 days before your planned move.

Under both laws, you can ask the court to excuse you from giving notice of a planned move if doing so would put you at risk of family violence.

Objecting to a relocation

Under the Family Law Act, only a guardian can object to your plan to move after they get the notice. They can object by filing a court application for an order to stop the move within 30 days of receiving notice of the move.
Under the Divorce Act, only someone who has parenting time or decision-making responsibility can object to your plan to move. They must object within 30 days of receiving notice of the move, using a special form or filing a court application for an order to stop the move.

If a guardian or a person with parenting time or decision-making responsibility objects to your move, they can ask for an order that says you can’t move. To decide whether you can move, the court looks at a number of factors, including:

the reasons for your move,
whether your move is likely to improve your child’s or your quality of life,
whether you gave proper notice of your plan to move,
whether you suggested reasonable arrangements to protect the child’s relationship with the person who isn’t moving, and
whether the move is in the best interests of the child.

A person who only has contact with a child can’t object. Instead, a person with contact can apply anytime for an order to change their contact time.

The Family Law Act and the Divorce Act both say you must try hard to work out your disagreements. To avoid an urgent and difficult court hearing (whether or not you have a parenting agreement or order), try to discuss your move with the other person before you make firm plans. Also, get a lawyer’s advice about how likely it is that a court would allow the move. Use mediation to help sort out new parenting arrangements or a new contact schedule.

See Help to make an agreement for where to find a mediator.

Concerns about parenting time or contact

Conditions in your court order

If you have concerns about the other parent or another person spending time with your child, you can ask a judge to include conditions in your court order to help protect your child. For example, the order could say the other person:

can’t take your child out of the province,
can’t use alcohol or drugs immediately before and during visits, and/or
can only visit your child when a supervisor (neutral person) is there.

If you’re afraid for your safety or your child’s safety when they spend time with the parent or person with contact, see a lawyer immediately. If you can’t afford a lawyer, you might be able to get legal aid. You might also be able to get legal aid if the other parent has denied your parenting time or contact.

See Help from a lawyer for more about Legal Aid BC.

Denying parenting time or contact

The courts want to ensure children have meaningful relationships with each parent.

To deny parenting time or contact, you must have strong reasons showing that time with the other parent would be emotionally or physically unsafe for the child. Some examples include:

you’re afraid for your child’s safety because of family violence;
you believe the other parent was drunk or high when they were to have time with your child;
over the past year, the other parent often missed their parenting time, or was late and didn’t give you reasonable notice;
your child is ill, and you have a doctor’s note.

One parent can’t deny the other parenting time or contact because they don’t pay child support or are behind on payments. There are other ways to enforce non-payment of support.

Disputes

If you have a Family Law Act court order or agreement that gives you parenting time or contact and the other parent or guardian won’t let you see your child, try to sort things out with the other person outside of court. This can include getting help from a family justice counsellor or another mediator. If you can’t work things out, you can ask a court to enforce the order or agreement.

If the court finds the other parent or guardian “wrongfully” kept you from spending time with your child, the court can make an order that:

you and the other parent or guardian must attend mediation or another form of family dispute resolution;
you, the other parent or guardian, or your child must attend counselling;
you can make up the lost time with your child over a period of time set out in the order;
the other parent or guardian must pay you back any relevant expenses you incurred when you were denied time with your child;
the transfer of your child from the other parent or guardian to you must be supervised;
the other parent or guardian must pay you or your child up to $5,000 for denying you time with your child; or
the other parent or guardian has to pay a court fine of up to $5,000.

If a person with parenting time or contact repeatedly fails to use their parenting time or contact with the child, the court can also make similar kinds of orders about that.

superadmin Wed, 02/07/2024 - 19:16