British Columbia Law
Custodial Rights Under BC's Family Law Act
Custodial rights were replaced in BC with the Family Law Act (FLA). FLA s.37 says one must consider the best interests of the child only. FLA s.39 states when a parent is a Guardian - or not - with Parenting Responsibilities (not rights) and Parenting Time.
If a biological parent lived with the child before the parents separated, then that biological parent is automatically a Guardian of their child, and thus eligible to have Responsibilities and Parenting Time.
FLA section 39(3) says: "A parent who has never resided with the parent's child is NOT the child's guardian unless...." However, an adult, even if not a biological parent, can apply to become a Guardian - for example, if they cared for the child, as defined by the evolving case law.
Understanding Guardianship, Parenting Responsibilities, and Parenting Time under BC's FLA is essential to any parenting dispute - and Andrew Liggett has decades of experience navigating exactly these issues.
From "Custody" to "Guardianship": A Fundamental Shift
Before BC's Family Law Act came into force in 2013, BC family law used the language of "custody" and "access" - language borrowed from older federal law and common law traditions. That language implied that one parent "won" and one parent "lost" a custody battle. It framed children as objects to be divided rather than people with their own rights and interests.
The FLA replaced that framework entirely. BC now uses the concepts of Guardianship, Parenting Responsibilities, and Parenting Time. These terms reflect a fundamentally different philosophy: both parents are presumed to have ongoing roles in their children's lives, and the law focuses on what serves the child rather than what satisfies either parent.
Who Is Automatically a Guardian?
Under FLA section 39, the following people are automatically Guardians of a child:
A parent who has lived with the child - that parent is automatically a Guardian at all times.
A parent who has not lived with the child, but was living with the other parent at the time of the child's birth - that parent is automatically a Guardian.
A parent who has not lived with the child but cares for the child - that parent is automatically a Guardian.
The biological mother of the child is always a Guardian.
If a person is not automatically a Guardian under section 39, they can apply to the court to be appointed as a Guardian under section 51. Courts applying this section look at: the person's existing relationship with the child, the stability they can offer, the child's own wishes (if age-appropriate), and the ability of the applicant to carry out the responsibilities of Guardianship.
What Are Parenting Responsibilities?
Guardianship does not just mean spending time with a child. It means holding specific Parenting Responsibilities - the legal authority to make decisions about a child's life. Under the FLA, Parenting Responsibilities include:
Day-to-day care and supervision of the child.
Making decisions about the child's education, including school choice and special educational needs.
Making health care decisions, including consenting to medical treatment.
Applying for passports and identity documents.
Deciding the child's cultural and religious upbringing.
Managing any property held by or in trust for the child.
Parenting Responsibilities can be shared between all Guardians (which is the default presumption) or allocated differently by agreement or court order. For example, two parents might agree to share most responsibilities jointly, but one parent may be given sole authority over educational decisions if they live near the school and have the stronger relationship with teachers and staff.
What Is Parenting Time?
Parenting Time is distinct from Guardianship. It refers to the time a child physically spends with each Guardian. During Parenting Time, the Guardian with the child has the authority to make ordinary day-to-day decisions for the child's care - what the child eats, when they sleep, what activities they attend that day.
Parenting Time schedules can take many forms: 50/50 week-on-week-off, primary residence with one parent and regular visits with the other, split weeks, or any other arrangement that serves the child's best interests. The FLA does not prescribe a default schedule - courts and parents are encouraged to develop arrangements tailored to the child's specific needs, age, school schedule, and relationships.
The Best Interests of the Child: Section 37 of the FLA
Every decision about Guardianship, Parenting Responsibilities, and Parenting Time must be made by reference to the best interests of the child. FLA section 37 sets out the factors a court must consider:
The child's health and emotional well-being.
The child's views (weighted by the child's age and maturity).
The nature and strength of the child's relationships with each parent, siblings, and significant others.
The history of care - who has been the primary caregiver, and how has that role been carried out?
The impact of any family violence on the child and the other parent.
Whether each parent is able to exercise their responsibilities.
The child's cultural, linguistic, racial, and Indigenous heritage.
The child's need for stability, given the disruption of the separation.
Family violence receives heightened attention in BC courts. If there is a history of family violence, a court will consider its nature, severity, and pattern - and may limit or supervise the contact of the parent who committed the violence.
Parenting Agreements vs. Court Orders
Most parenting arrangements in BC are resolved by agreement rather than court order. A written Parenting Agreement signed by both Guardians is legally binding and can be registered with the court if either party later fails to comply.
Mediation is an effective and far less adversarial way to develop a Parenting Agreement - and Andrew Liggett holds the Law Society's Family Law ADR Professional designation, combining both mediation and arbitration credentials.
If agreement is not possible, a Guardian can apply to BC Supreme Court or BC Provincial Court for a parenting order. Courts can make orders about Guardianship, Parenting Responsibilities, Parenting Time, and contact (for non-Guardians like grandparents).
Sea to Sky Law™ represents clients in parenting disputes across all of BC, from negotiated agreements to contested court hearings. Whether you are seeking Guardianship, clarifying Parenting Responsibilities, or addressing a change in your child's needs, Andrew Liggett BA JD CD brings decades of experience to protect both your rights and your child's best interests. Contact us for a consultation today.
This article is general information, not legal or tax advice. Meetings are by appointment only, by phone or secure video.