Is a parent’s only rights to custody of their children defined by court order?

It is not the case that a parent’s only rights to custody of, and/or access to, their children are defined by court order. At common law, and under Part 2 of the Act (s. 27), the mother and father of a child who are living together are the joint guardians of the child with joint rights and obligations in relation to the child. If one parent unilaterally removes the child from the jurisdiction without the knowledge or consent of the other parent, this amounts to a wrongful taking of the child and a breach of the other parent’s rights as joint custodial parent. The fact that there was no order in place may be relevant to the father’s ability to enforce his rights, but the absence of an order does not mean that those rights are non-existent. This was the view of Madam Justice Levine in Hewstan v. Hewstan, 2001 BCSC 368, where she stated, at para. 35: There can be no doubt that one parent having joint guardianship rights over the person of a child cannot remove a child from the jurisdiction without the consent or over the objections of the other.