Custody & access

At what age can children choose which parent they get to live with?

Many people believe that when children turn 12, they can choose which parent will have custody, but this isn't true. If it ends up in court, while the judge may consider the child's wishes when making a custody decision, the child's age doesn't automatically decide the issue. Each case is decided on its own facts. In some cases, judges have considered the preferences of younger children, especially if they appear to be mature and thoughtful for their age. However, the judge must always make the decision in the overall best interests of the child. If the child's wishes are based on poor reasons or there are other, more important facts, the judge may grant custody to the other parent. By the time a child is near adulthood (age 19), judges will usually make a custody order that recognizes the child's preference.

For more information, see the online fact sheet Custody and the booklet Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce.

My former common-law partner pays child support for our daughter, who lives with me and stays with him every second weekend. Now he wants her to stay every weekend, but I don't agree with that. We both want what's best for our daughter, but just can't seem to agree on this, no matter how much we discuss it. What can we do?

It's always best if you and your former partner can resolve things, especially when it's related to your children, without going to court. Help is available for you and your former partner to make decisions based on your daughter's best interests.

You could take a free, three-hour Parenting After Separation course for parents who are dealing with child custody, guardianship, access, and support issues. You can also meet with family justice counsellors who are accredited mediators. One of the things they do is to help separated parents come to agreements on custody and other family law issues. These agreements are legally binding and can be filed with the courts.

You can also get help from a private mediator. See the Mediate BC website for a list of available mediators and other information about mediation and how it works.

If you and your former partner try these services and still can't reach an agreement about access to your daughter, your other option is to go to court.

For more information, see the fact sheet Access and the booklet Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce.

What is court harassment?

Court-related abuse and harassment happens when one party in a family law action uses the legal system or repeated or ongoing legal actions to harass and abuse the other party. See our fact sheet What if your ex is harassing you through the courts? for a detailed description of this type of harassment. If you're financially eligible, you may qualify for legal representation (a lawyer paid by legal aid) because of these or similar instances of court-related harassment. For more information about legal representation, see the legal aid Serious family problems and How to apply for legal aid pages.

Do I have to put the name of the other parent on my baby's birth certificate registration?

The birth certificate registration only contains information about the child's date and place of birth, and who his or her parents are. If you choose not to put the other parent's name on the birth certificate, that parent's rights and obligations towards the child don't change. The parent's obligation to pay child support for the child doesn't change, nor do his or her rights to custody, guardianship, and access.

However, if you're deciding whether to put the other parent on the birth certificate registration, it's important to get legal advice based on your circumstances and legal needs. See Who can help? for more information about how to find a lawyer.

See the BC Vital Statistics website for more information on filling out the registration form for a birth certificate.

Can I get access to my grandchild?

My son let his wife have full custody, and my granddaughter's mother has been very difficult to deal with. She got the order through Provincial Court.

There are options for relatives who want to maintain a relationship with a child. These options include family justice counsellors, mediation, conciliation, and going to court. See also our fact sheet Access.

Some services that might help you are Provincial family duty counsel or the Lawyer Referral Service. Or see the other services listed in Who can help?

What if we want to change a court order for custody or child support, but one of the parties no longer lives in British Columbia?

If you or the other parent doesn't live in BC, standard family law rules won't apply. If this is your situation, your case is more complicated, and you should see a lawyer to get some advice. See Who can help? for how to find a lawyer. See also the fact sheet about interjurisdictional issues on this website. Or see the booklet Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce.

What are costs?

I'm representing myself and I have found there are terms that I can't find a clear and concise definition of. For example, costs. This is a minefield for the lay person! What costs? The costs of appearing in court? The costs paid to the lawyer to date? If it's a total of all legal costs, then how is it broken down?

In the Supreme Court or the Court of Appeal, "costs" refers to a court order that says that the losing party in a lawsuit must pay the legal expenses of the successful party. See our fact sheet about costs for more detailed information about how costs are calculated.

How do I serve Provincial or Supreme Court documents on my spouse if I don't know where he or she lives?

If you don't have an address for your separated spouse, you need to try and locate him or her. See the resources on JP Boyd's BC Family Law Resource (scroll down to "Starting an Action" and read the section called "find my ex?").

How do I serve Provincial or Supreme Court documents on my spouse if I can't find an address for him or her?

If you've tried our suggestions (above) for finding an address for your separated spouse but haven't succeeded, you could apply to the court for an order for substituted service. See our self-help guide on how to arrange for alternative service. See also the resources on JP Boyd's BC Family Law Resource (scroll down to "Starting an Action" and read the section called "substitutionally serve someone with legal documents?") for some suggestions on how to proceed.

Can I serve Provincial Court documents on my separated spouse if he or she no longer lives in BC?

Generally, no. If your spouse no longer lives in BC, you'll have to apply in Supreme Court, not Provincial Court. This is because Provincial Court applications can't be validly served on a person outside BC. One exception to this rule is for applications to get or change an order for support. The Interjurisdictional Support Orders Act allows you to apply in Provincial Court if your spouse is outside of BC (or if the order you want to change was made in Provincial Court).

How do I serve Supreme Court documents on a spouse who lives outside BC or outside Canada?

Generally, you must serve documents on a spouse who lives outside BC the same way you would serve a spouse within BC. This is true whether your separated spouse lives in another Canadian province or territory, or in another country. See our self-help guide on how to serve Supreme Court documents outside BC ( instructions for the person serving your documents available as a PDF in English; see the Quick links at the right-hand side of the screen).

You can ask a friend or family member who lives near your spouse to personally serve documents for you, or you can hire a professional process server to serve the documents on your spouse for you. Or, if your separated spouse lives in a country that has signed the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, you could choose to have the documents served on your separated spouse by following the procedures set out in that Convention.

If you want to hire a process server to serve the documents personally on your separated spouse, you can try to locate process serving companies where he or she lives using either the local yellow pages or the Internet. The fact that you've not seen your spouse in many years doesn't affect the requirements for serving documents.

How much time do I have to serve my Supreme Court documents after I file them with the court registry?

I originally served my wife with the Notice of Family Claim (Form F3) (or a Writ of Summons and Statement of Claim under the old rules) nine months ago, but did not take the next step of having an Affidavit of Service completed and filed with the court registry. This was because serving my wife with the court documents led to new discussions about trying to save our marriage. We've since agreed to move ahead with the divorce, but now I no longer have three copies of the Notice of Family Claim (or Writ of Summons and Statement of Claim). Is the original service still valid, nine months later, or do I have to re-serve the documents? If I have to re-serve the documents, will the court registry give me copies of the documents I already filed, so that I can have them served on my wife? Or must I start from scratch, re-file everything, and pay the full amount again?

A Notice of Family Claim (Form F3) remains effective for 12 months. This means you can continue with your divorce application process because you had the Notice of Family Claim served within that 12-month period. You can apply to renew the Notice of Family Claim if it's not served on the other party within the 12-month period.

Your next step is to have the person who served the documents on your wife complete an Affidavit of Personal Service (Form F16). See our self-help guide on how to serve Supreme Court documents by personal service.

If the person who served the court documents on your wife is no longer available to swear an Affidavit of Personal Service (Form F16), you must have someone else re-serve the court documents on your wife. You can have the court documents re-served so long as this happens within 12 months of the date the Notice of Family Claim was filed with the court registry. The new server must then complete an Affidavit of Personal Service (Form F16). If you need additional copies of the documents that you filed with the court, contact the court registry.

If the Notice of Family Claim hasn't been served within 12 months of the date it was filed with the court registry, an applicant has two options. He or she can either:

• file a new Notice of Family Claim with the court registry (and pay another filing fee) or
• make a separate application to the Supreme Court to have the Notice of Family Claim renewed for another year, and then serve the renewed documents (this is a much cheaper option).

To get help, see the services listed in Who can help?

Where can I find a Supreme Court Notice of Intention to Proceed?

I intend to apply to the Supreme Court to change a final divorce order made more than three years ago. Do I need to serve a Notice of Intention to Proceed (Form F48) before serving a Notice of Application (Form F31)? I searched for this form, but I can't find it. Is there such a form or do I simply write a letter stating my notice of intention to proceed and serve it on the other party?

You don't need to serve a Notice of Intention to Proceed if you have a final order, even if a number of years have passed. You do have to have your Notice of Application (Form F31) served personally on the other party.

If a final order hasn't yet been made and you're proceeding more than one year after you first started, you must complete and serve a Notice of Intention to Proceed (Form F48) on the other party. This is a Supreme Court form that you can use. See our self-help guide called How to use a Supreme Court Notice of Intention to Proceed (Form F48) for links to a blank form, and information about when to use it, and how to fill it out and serve it on the other party.

I need to fill out a Form F30. Where can I find a blank version of this form?

Form F30 is also called an Affidavit. You can find it either on the Court Services Branch forms page or on our Court forms page, listed under Affidavit.

Do the new Supreme Court Family Rules apply to my case if any of my documents were filed before the new rules came into effect?

Yes. All cases started before the new rules took effect on July 1, 2010 are considered (or "deemed") to be family law cases under the new rules.

How do the changed rules affect my case if I filed it before July 2010?

First of all, from July 1 on, you must follow the court rules as set out in the new Supreme Court Family Rules.

Secondly, if you filed documents before July 1, 2010 that contained different names or terms they are considered (or "deemed") to be the new documents and the new terms apply to your case. For example, if you filed a Writ of Summons and Statement of Claim before July 1, 2010, you're now considered to be the "claimant" instead of the "plaintiff" and the Writ of Summons and Statement of Claim are considered to be the "Notice of Family Claim." If you filed an Appearance or an Appearance and Statement of Defence, you're now the "respondent" instead of the "defendant" and your documents will be referred to as a "Response" under the new rules.

See also our Old Rules/New Rules Chart showing the names of documents filed/terms used under the old rules and what they are called under the new rules.

Do I need to file other documents to replace the ones I filed before July 1, 2010?

In most cases, neither party will have to file new documents. However, if one party does want the other party to use the new form instead of the document they filed before July 1, 2010, they can serve a Demand (Form F99) on the other party, and the other party must file the new document within 21 days of being served with the Demand.

You can't make this demand if final orders have been made for all the claims in your case.

One situation where it might be helpful to ask the other party to file the new form is if the other party filed a Writ of Summons or a Writ of Summons and Statement of Claim before July 1, 2010, but you've not yet filed an Appearance or Statement of Defence. The new Response (Form F4) asks you to respond to the facts and claims set out in the Notice of Family Claim and this form will be difficult to fill out if the other party hasn't filed a Notice of Family Claim.