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How to File for Custody in BC - Consider Your Options

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Okay, you are wondering how to file for custody. The question you must first ask yourself is if it is a step you want to take. If you file for child custody, chances are, you will be entering into litigation, and that litigation might end up being more costly, emotionally exhausting, and conflict-ridden than you planned. 

When we talk about filing for custody, we really are talking about when parents are filing for full custody of their children, meaning that they want to have the primary decision-making responsibilities and, likely, the majority of the parenting time.

If you are looking for an amicable divorce, filing for full custody is, in most cases, not the way to start. It is not how you ensure that your separation and divorce process is going to go smoothly. Of course, there are situations when filing for custody is exactly what your children need. At Pathway Legal, we ask you about this because we want to ensure that you are asking about how to file for custody because it is important for the best interests of your children. Essentially, we see it as an extraordinary remedy rather than the “go to” in terms of creating the parenting plan for your children.

Quick Links

1. The cons of filing for custody

2. When filing for custody is necessary

3. How to file for custody: steps 1 to 6

4. How to file for custody: steps 7 to 13

5. Emergency hearing child custody

6. Different types of child custody

7. Child custody schedules

8. Getting custody of a child

Parental kidnapping no custody order - type situation - meet my (former) friends, Daphne and Wallace

If you want to see a true example of a case where a parent had little choice regarding filing for custody, meet Daphne and Wallace. Despite separating very recently, Daphne and Wallace are already knee-deep in a high conflict custody battle. The short version is that there was interference with child custody and a parental kidnapping no custody order-type situation. Wallace withheld their young child, Zayden after picking him up from daycare. He withheld him for eight days. Daphne filed for an emergency custody order. 

For a more detailed account of Daphne and Wallace and their circumstances, shoot to the end of this article.

The many cons of filing for custody

The BC Family Law Act no longer uses the word “custody"

Some parents, because of safety for their children, or another significant reason like a parental kidnapping no custody order-type situation as in Daphne’s and Wallace’s case, have little choice but to file for custody.

Yet for Daphne and Wallace, the toll and cost has already been immense.

Here are the drawbacks that both Daphne and Wallace (not to mention their kid, Zayden) are already experiencing:

  1. Emotional stress and turmoil. Knowing Wallace the way we do, we knew that their separation would be emotionally taxing because he is a very intense guy. However, since filing for custody, the stakes have become much higher. They have already had two stressful court appearances, with more to come. Because Wallace and Daphne are not in an alternative dispute resolution process, at least yet, they are already emotionally drained with heightened stress in their lives. All of this is spilling over to their young child.
  2. Financial costs. The cost of raising a family is significant enough without adding legal fees, and lots of them, to your bottom line. Wallace has just hired his lawyer #4 and has already spent countless thousands of dollars. So has Daphne. When compared to alternative dispute resolution (ADR) methods that are available, their money would be much better spent if they used a dispute resolution process. Wouldn’t it be better for Zayden if Wallace and Daphne were saving for his university education rather than spending money on lawyers? 
  3. Then there is the time it takes. When you are involved in litigation v. mediation you are at the mercy of the court schedule which includes not only ensuring that there is the availability of courtrooms, but the availability of judges. In BC our courts always, and we mean always book more court trials than there are judges available in case people come to an amicable divorce agreement at the last minute. That way they don’t have judges hanging around with nothing to do. As well, judges are expensive and we don’t have enough of them in BC to hear all the cases they need to hear within a reasonable time period.  
  4. The uncertainty. Bluntly, there is no such thing as a “slam dunk” when involved in litigation v. mediation. The best lawyer for child custody will tell you, that despite all odds, sometimes, even the strongest cases do not win.

When filing for custody is necessary

So, yes, when there is the “parental kidnapping no parenting order” - type situation, filing for custody will likely be necessary. However, almost always, it is better if parents can attend a child custody mediation process. 

When parties use an alternative dispute resolution process, they can often make much more progress towards coming to an amicable divorce agreement. 

At Pathway Legal it is our view that even if you are in a high-conflict custody battle with no end in sight, it is always, and we mean always worth it to see if you can shift gears and utilize an alternative dispute-resolution approach. There are so many downsides to litigation v. mediation. 

Now that we have covered all of that information. Let’s talk about how to file for custody in BC.

How to file for custody in BC - where to start

Once you have made the decision to file for child custody, there are steps you want to take to ensure that the process will go as smoothly as possible. There is nothing worse than having a really good case for filing for child custody, but you have not followed the correct procedures, that is, you do not know how to file for custody correctly and you end up not being able to protect the best interests of your kids. 

The 13 steps you must take when filing for custody in BC

#1 - Consult with a child custody law firm or the best child custody lawyer you can find

At the risk of coming across as self-serving (that is, a child custody law firm like Pathway Legal tells you to consult with the best child custody lawyer you can find), we mean this. Even if you do not consult with one of our lawyers at Pathway Legal, access whatever advice you can. There are free lawyers available at the Justice Access Centres in Victoria, Vancouver, and Nanaimo. You want to make sure you have at least a background understanding of Canadian child custody laws. Even better, if you can afford it, do consult with and hire a lawyer with the experience and background to assist you.

#2 - When consulting with lawyers for child custody, come prepared

Regardless of whether or not you pay for your initial consultation or utilize a free resource, you must remember that divorce and custody lawyers are busy people. They schedule their time in half-hour or hour-long blocks. Don’t waste their time and yours by not having all the background information ready to go. Make sure you have written out the full names of you, the other parent, the name and birthdates of everyone, the other parent’s address, email, and phone number. If your spouse has hired a lawyer and you can find out the name of that lawyer, have that ready also. Have it all written out, both ready to go in an email, and on a hard copy printed out piece of paper. 

The point is that the more prepared you are with the background information, your time with your divorce and custody lawyer will be better spent.

#3 - Be clear in your own mind – know the reasons why you're filing for custody

Crying toddler girl being held and consoled by her mother

Because at Pathway Legal, we deal with all kinds of family law matters including the fact that we are a child custody law firm, people often consult with us when wanting to know how to file for custody. A lot of the time, however, a parent who is filing for custody is not exactly very clear as to why. When you are seeking legal advice and preparing to file for custody, make sure you have a very clear idea as to why. 

Is it because you can’t stand the other parent? Well, you are definitely going to need more than that. This is because Canadian child custody laws assume it is in a child’s best interest to have a meaningful relationship with each of their parents and that meaningful relationship includes the child spending time with both parents, and both parents making significant decisions about their child. 

We can’t tell you how many times parents have come to us asking how to file for custody but not having a clear and significant reason as to why. 

So, if you are getting custody of a child, there must be a good reason such as:

  1. Family violence 
  2. Neglect 
  3. Parental alienation 
  4. Estrangement
  5. Incapacity of a parent 
  6. Parental kidnapping no custody order

#4 - Make sure you are in the right jurisdiction!

Make sure you are applying in the right jurisdiction. For example, if a child regularly lives in Alberta and you are filing for custody in British Columbia, you are not in the right jurisdiction, even if you live here.

#5 - Before asking how to file for custody, consider whether or not you can negotiate or mediate an agreement

What if the other parent agrees with you? That could be a possibility. We always, and I mean always, suggest that parties try to negotiate an agreement prior to filing for custody. Ask yourself if it is possible for you to head for an amicable divorce? The best divorce lawyers always recommend mediation or other alternative dispute resolution strategies.

Mediation for Child Custody

Mediation for child custody is almost always a good idea. In fact, the lawyers at Pathway Legal all believe that mediation in a divorce case is almost always a really great idea. When people proceed with mediation for child custody, they first sit down with a trained family law mediator (with or without their lawyers), and try to reach an agreement regarding the parenting plan for their kids before or instead of going to court.

Mediation tends to be less expensive, less time consuming, and less emotionally draining than court. 

As well, you and the other parent have an opportunity to develop a parenting plan that will work for both parties and your children. This is often so much better than handing such an important decision over to a judge, a judge who has never met you before and has certainly never met your kids.

#6 - Consider getting a parenting assessment or “hear the child” report

Canadian child custody laws require that a child’s voice must be considered. While it is true that a decision maker (a judge or arbitrator) must solely consider the best interests of a child when deciding about parenting arrangements, a child’s views matter unless it is inappropriate to consider their views (a three-year-old, for example, should not be weighing in on the parenting structure – that would not be appropriate). 

Unless the child is very young or does not have the required cognitive ability, you want to get your child’s voice heard. The appropriate way to get their voice heard is by having them interviewed by a hear-the-child specialist. That is someone who is specifically trained to interview kids and report back what kids tell them.

Important Related Pages

Collaborative Family Law Professionals in British ColumbiaCollaborative Family Law
Divorcing Without Court in Victoria and British ColumbiaChoosing A Lawyer
Divorcing With Children in Victoria and British ColumbiaDivorce & Children
Divorcing With Children in Victoria and British ColumbiaYour Legal Team

#7 - Court hearing for child custody - decide which court to use

The best child custody lawyers will be able to tell you, based on your circumstances, whether you will want to file for child custody in the Provincial Court of British Columbia or the Supreme Court of British Columbia. They will also give you pertinent child custody court hearing tips to help you prepare for your court hearing, for example, the cost of a divorce lawyer will be well spent if they are able to prepare your case with the following steps:

  1. Write out the specific terms of the order you are seeking 
  2. Prepare your evidence, that is make sure you have prepared a list of points you want to ensure the judge will hear before making their decision. Here is the best evidence for child custody.
  3. Gather up and put in order (with an index) all of the documentary evidence (videos, emails, texts, photos). 
  4. Have cross-examination questions ready to go based on what you anticipate the other side is going to say. 
  5. Legal research of the case law and BC Family Law Act.
  6. A written argument setting out: the order sought, the facts, and the legal argument.

#8 - Prepare the court materials

Divorce and child custody lawyers know exactly how to file for custody and prepare the best evidence for child custody, but, you do not have to use a lawyer if you can’t afford it or don’t want to. Getting ready for court means you have to file an application and, probably an affidavit. An affidavit is a written document that you write out and swear before a lawyer, notary, or commissioner for taking oaths. It is a detailed statement setting out your evidence as to why you think it is in our child’s best interest that you are filing for custody. An affidavit will be used for an interim sole custody application, but you may end up having to testify on the witness stand (just like on tv). 

#9 - Get a court date

The next step is that you are going to want to get your court date. This is based upon your availability, and, if you have a lawyer, their availability. The other parent and their lawyer will need to be consulted about their availability as well.

#10 - Serve the other parent with your application and affidavit

Unlike on television, Canadian custody laws require that we share as much information as possible with the other parent and their lawyer well in advance of the court hearing for child custody. This way they have a chance to respond to what you have said. 

#11 - Attend court

After all of that, you and your lawyer (if you have one) appear in front of the judge and the judge will ultimately decide what will happen regarding you filing for custody. 

#12 - Get the decision from the court

Sometimes the judge makes an immediate decision. Often, the judge will “reserve” their decision and provide their decision to you at a later date.

#13 - Implement the plan

Now that you have the decision, you and the other parent implement it. 

Emergency hearing child custody - filing for emergency custody - the story of Daphne and Wallace

Young boy with confused facial expression

As we write this, we just got off the phone with a friend. We will call her Daphne. Daphne and her husband, who we will call Wallace, started a court battle with each filing for full custody of their young child, who we will call Zayden. Daphne and Wallace have been separated less than two months and despite being otherwise intelligent people, they are now knee-deep into a high-conflict custody battle and already there is no end in sight. 

Daphne and Wallace are both undergoing extreme emotional stress and huge financial expense, not to mention it is all consuming. Their high-conflict custody battle is all that either of them can think about. 

Now, as far as Daphne goes, we have to agree with her that she was pretty much left with no choice when filing for emergency custody of their child, Zayden. Wallace had, against their agreement, picked up Zayden from his daycare and absconded with him, refusing to return Zayden to Daphne. At 3 years old, Zayden has never spent more than 3 days away from his mom. Daphne has always been the primary parent and until the parties separated, Wallace liked it that way, preferring to focus on his business, golf, and working out at the gym. 

For whatever reason, when Wallace withheld Zayden from Daphne for eight days, Zayden was caught in the crossfire of the conflict. This was no doubt a confusing and stressful time for Zayden.

Wallace generated a “parental kidnapping no parenting order” - type situation and he appeared to feel completely justified in his actions.  It was only when Daphne took the emergency step of filing for custody and having the courts intervene that she got to see Zayden at all. She now has him back in her care, and Wallace has parenting time agreed-upon according to a temporary child custody schedule. 

Because both of these parties were people we would (at least at one time) call friends, we tried to step in and work with them to come to a child custody schedule by agreement. My attempt to convince Wallace not to withhold Zayden, went nowhere. We told him that if he wanted to know how to lose custody, this was definitely the way to do it. Wallace refused to agree. 

So, yes, there are times when filing for full custody might be necessary. 

The problem is that even though filing for custody might have been necessary for Daphne’s situation, it is already taking its toll in terms of emotional turmoil and financial expense.

Now that you know how to file for custody - we can help!

Once you know the general steps in how to file for custody in BC, you will be able to move forward. Whether you hire a child custody law firm, or you do it yourself, you will have a clearer picture of the steps that need to be taken. 

As always, if you wish for further assistance, please reach out to us at Pathway Legal. We are your leaders making your divorce and separation process a better experience, not only for you but for your kids.