Garde d'enfants en Colombie-Britannique : Comment les tribunaux décident-ils des modalités de garde ?

In British Columbia, courts decide child custody disputes—legally defined as parenting arrangements, guardianship, parenting time, and decision-making responsibility—by assessing only one legal test: the best interests of the child. Under both provincial and federal legislation, neither parent holds an automatic right to equal parenting time, primary residence, or joint decision-making authority simply by virtue of being a mother or a father.

At Pax Law Corporation, our family law team regularly assists parents with all domestic matters arising from separation, from determining residential schedules to working with dedicated child support lawyers on financial obligations. Family disputes are examined strictly through the statutory frameworks and judicial precedents governing child custody in BC. Below is an overview of how provincial and federal statutes allocate parenting roles, the specific criteria judges evaluate, and the practical remedies available when family arrangements break down.

Applicable Legislation: Family Law Act vs. Divorce Act

When parties separate in British Columbia, two primary statutes govern child custody in BC and parenting arrangements:

• The Provincial Statute: Le Loi sur le droit de la famille, SBC 2011, ch. 25 applies to unmarried couples, separated spouses, and any domestic proceedings brought in BC.
• The Federal Statute: Le Loi sur le divorce, LRC 1985, ch. 3 (2e suppl.) governs parenting arrangements when married spouses initiate divorce proceedings.

Where spouses are legally married and both statutes are engaged, the constitutional doctrine of paramountcy dictates that the federal Loi sur le divorce takes precedence in the event of an operational conflict, as affirmed by the British Columbia Court of Appeal in J.T.P. v. K.S., 2023 BCCA 303 (at para 282).

Core Legal Concepts and Terminology

Modern family law in British Columbia avoids traditional terms such as “custody” and “access.” Instead, the law delineates specific roles and responsibilities to protect the child’s stability.

The Sole Standard: The Best Interests of the Child

En vertu de l'article 37(1) de la Loi sur le droit de la famille, parties and the court must consider uniquement the best interests of the child. The Court of Appeal in K.W. v L.H., 2018 BCCA 204 (at para 110) confirmed that parenting orders are never intended to penalize or reward a parent; judges must examine all relevant statutory factors cumulatively.

Article 37(2) de la Loi sur le droit de la famille requires the court to assess all needs and circumstances of the child, including:

1. The child’s physical health and emotional well-being;
2. The child’s views and preferences, unless inappropriate to consider;
3. The nature and strength of the child’s relationship with each parent and other significant figures;
4. The history of the child’s care;
5. The child’s need for stability, given their developmental stage;
6. Each person’s ability to exercise parental responsibilities;
7. The impact of any family violence on the child’s safety, security, and well-being;
8. Whether a perpetrator of family violence is impaired in their ability to care for the child;
9. Whether an arrangement requires cooperative parenting where such cooperation poses safety risks; and
10. Any active civil or criminal proceedings relevant to the child’s safety.

Pursuant to section 37(3), an order or agreement is not in the best interests of the child unless it protects the child’s physical, psychological, and emotional safety to the greatest extent possible. Similarly, sections 16(1) and 16(2) of the federal Loi sur le divorce place the primary consideration on the child’s safety, security, and well-being.

The Weight of a Child’s Views and Preferences

A child’s preference does not automatically dictate the legal outcome. Under section 16(3)(e) of the Loi sur le divorce and section 37(2)(b) of the Loi sur le droit de la famille, the court gives weight to views and preferences strictly in accordance with the child’s age and maturity.

Par exemple, dans T.F. v J.F., 2023 BCSC 2226 (at para 109), the court observed that where children are very young, their preferences carry little to no evidentiary weight. As children mature, their perspectives receive greater consideration; however, judicial scrutiny ensures those opinions are expressed independently, free from parental alienation, undue influence, or loyalty conflicts.

Equal Parenting Time is Not Automatic

A frequent misconception regarding child custody in BC is that the law presumes a 50/50 shared schedule. Section 40(4) of the Loi sur le droit de la famille explicitly confirms that there is no presumption in favor of equal parenting time, equal division of responsibilities, or joint decision-making.

While section 16(6) of the Loi sur le divorce provides that a child should have as much time with each spouse as is consistent with the child’s best interests (the “maximum contact principle”), the Supreme Court of Canada affirmed in Barendregt contre Grebliunas, 2022 SCC 22 (at paras 152–153) that this principle is not absolute. It remains entirely subordinate to the best interests test, care history, stability, and safety risks.

The Impact of Family Violence on Parenting Decisions

Family violence is broadly defined under provincial and federal statutes. It is not limited to physical abuse directed at a child; it includes violence directed toward a spouse, coercive and controlling behavioral patterns, psychological abuse, and exposure to conflict.

En vertu de l'article 38 de la Loi sur le droit de la famille et K.W. v L.H. (at paras 99–101), courts evaluate:

• The nature, persistence, and severity of the violence;
• How recently incidents took place;
• Whether an established pattern of coercive control exists;
• Direct or indirect exposure of the child to the violence;
• Psychological and physical harm suffered; and
• Whether the violent party has taken rehabilitative steps to prevent recurrence.

In K.W. v L.H. (at para 121), the BC Court of Appeal recognized that persistent disparaging remarks made about the other parent in the child’s presence can constitute family violence if it causes anxiety or impairs parental bonding. Furthermore, in J.T.P. v. K.S., 2023 BCCA 303 (at paras 399, 404), exposure to inter-parental conflict rendered cooperative decision-making unworkable. In such cases, courts may issue protection orders under sections 183 and 187–188 of the FLA, order supervised parenting time, or mandate supervised exchanges under section 45(3) of the FLA and section 16.1(8) of the Loi sur le divorce.

Parenting Agreements Between Parties

En vertu de l'article 44 de la Loi sur le droit de la famille, parents can enter into written agreements addressing the division of parenting time, decision-making, handovers, and dispute resolution. Once filed in court, an agreement is enforceable as an order. However, if the court determines that the terms do not serve the child’s best interests, it retains statutory authority to set aside or vary the agreement. Similarly, under section 16.6 of the Loi sur le divorce, courts will typically endorse an agreed parenting plan unless it conflicts with the child’s best interests.

Relocation: Moving With a Child

Relocation occurs when a proposed move will have a significant impact on the child’s relationship with another guardian or person holding contact (Loi sur le droit de la famille, s 65). Strict rules govern relocation disputes:

A relocating guardian must provide at least 60 days’ written notice under section 66 of the FLA et la section 16.9 du Loi sur le divorce. An opposing guardian must file an application to prohibit the move within 30 days (FLA, s 68). Crucially, the Supreme Court of Canada affirmed in Barendregt contre Grebliunas (at para 140) and section 69(7) of the FLA that courts must not consider whether a parent would still move if permission to relocate the child were denied.

Wrongful Denial of Parenting Time

When a parent wrongfully denies lawful parenting time, the court holds robust enforcement remedies under section 61 of the Loi sur le droit de la famille:

• Awarding compensatory make-up parenting time;
• Requiring supervised transitions;
• Directing attendance at family dispute resolution or counseling;
• Ordering reimbursement for travel expenses, lost wages, or childcare costs; and
• Imposing statutory fines or security payments up to $5,000.

Pursuant to section 62, a denial is not wrongful if a parent reasonably believes the child faces imminent family violence, the other parent is impaired by drugs or alcohol, or the child is acutely ill. When a parent repeatedly fails to exercise allocated time, courts may apply reciprocal cost penalties or supervisory conditions under section 63.

Varying or Changing an Existing Court Order

Courts do not alter final custody orders lightly. Under section 47 of the Loi sur le droit de la famille, an applicant must demonstrate that a material change in the needs or circumstances of the child has occurred since the order was rendered. In matters under section 17(5) of the Loi sur le divorce, an established relocation constitutes a material change, whereas a relocation previously denied by a court does not (s 17(5.2)–(5.3)).

Questions fréquemment posées

Is there a presumption of 50/50 child custody in BC?

No. Under section 40(4) of the Loi sur le droit de la famille, there is no legal presumption in British Columbia that parenting time must be divided equally or that parental responsibilities must be shared 50/50. Every arrangement is determined solely by the best interests of the specific child.

At what age can a child choose which parent to live with in BC?

There is no specific statutory age at which a child can make this decision independently. While a mature minor’s views are granted serious weight under section 37(2)(b) of the Loi sur le droit de la famille and section 16(3)(e) of the Loi sur le divorce, the ultimate determination remains with the court or the agreeing guardians until the child reaches the age of majority.

Can a parent relocate to another city with the child without consent?

Non. En vertu de l'article 66 de la Loi sur le droit de la famille et la section 16.9 du Loi sur le divorce, a guardian must give at least 60 days’ written notice of a planned relocation. If the other guardian objects within 30 days, the relocating parent cannot move the child without court approval.

For structured legal representation regarding child custody in BC, parenting schedules, or relocation applications, contact Société d'avocats Pax à travers notre page contact.