Difference between revisions of "Guardianship, Parenting Arrangements and Contact"

The provincial ''Family Law Act'' talks about the care of children in terms of ''guardians'' and the rights and duties they have in respect of the children in their care. Most of the time a child's parents will be the child's guardians, but other people can be guardians too, including people who have a court order appointing them as guardians and people who are made guardians by a guardian's will.

==Being a Guardian and Becoming a Guardian==

Section 39 of the ''Family Law Act'' sets out the basic rules about who is presumed to be a guardian:

===Being a Guardian===

That said, it's unlikely that too many people are going to be aware of the presumptions of guardianship s. 39 talks about, and you may have problems dealing with people like doctors, teachers, police and border guards. First of all, it's unlikely that these people will have read the ''Family Law Act''. Secondly, how would they know that you lived with the other parent after the child's birth? What you might want to get is an agreement that says "Brenda is the guardian of the child Max", or the declaration of a judge, called a ''declaratory order'', confirming your status in relation to your child.

===Becoming a Guardian===

If you are a parent, you can become a guardian under s. 39(3)(b) of the ''Family Law Act'' by making an agreement with all of the child's other guardians. If one of the child's guardians disagrees, you will have to apply to court to be made a guardian.

====Applying to Court====

Parents and other people can apply to be made a guardian under s 51 of the ''Family Law Act''. That section requires a person applying for guardianship, an ''Applicant'', to provide certain information about why the order would be in the best interests of the child.

In the Provincial Court, Rule 18.1 requires the Applicant to provide a special affidavit in Form 34, sworn no more than 7 days before it is filed in court, that talks about:

#the Applicant's relationship with the child;

#the child's current living arrangements;

#the Applicant's plan for the parenting of the child;

#any incidents of family violence that might affect the child; and,

#the Applicant's involvement with other court proceedings involving children under the ''Family Law Act'', the old ''Family Relations Act'', the ''Child, Family and Community Service Act'' and the ''Divorce Act''.

The Rule also requires that the Applicant supply a criminal records check and a records check from the Ministry for Children and Family Development dated with 60 days of the filing of the affidavit.

Rule 15-2.1 of the Supreme Court Family Rules says much the same thing but requires that the special affidavit, in Form F101, be sworn at least 28 days before a hearing where people will present arguments or at least 7 days before filing if there will not be a hearing. The records checks must no more than 60 days from the date of the hearing.

Parents and other people can also be made a guardian if they have been appointed by a guardian as a ''standby guardian'' under s. 55 of the ''Family Law Act'' or as a ''testamentary guardian'' under s. 53 of the act. Guardians who have been appointed in this way don't need to make an application under s. 51 and don't need to worry about filing the special affidavit or getting records checks done.

==Parental Responsibilities and Parenting Time==

People who are the guardians of a child have ''parental responsibilities'' in respect of that child and their time with the child is called ''parenting time''. Together, parental responsibilities and parenting time are known as ''parenting arrangements''. Section 40 of the ''Family Law Act'' talks about who has parental responsibilities and parenting time and how they are shared:

The ''Family Law Act'' deals with parenting time very briefly. Section 42 says this:

The time a person who is not a guardian has with a child is ''contact'', including the time of parents who are not guardians. The ''Family Law Act'' doesn't say much about contact, except to say that anyone can apply for it, including parents and grandparents. This is the definition of contact from s. 1 of the act:

A schedule of contact can be set by agreement between the person and the child's guardians under s. 58 of the ''Family Law Act'', or a schedule of contact can be fixed by a court order made under s. 59. Agreements for contact are only good if they are signed by all of the child's guardians who have the parental responsibility of determining who can have contact with the child.

==Incapacity and Death of a Guardian==

===Temporary Authorizations===

Under s. 43(2) of the ''Family Law Act'', a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on his or her behalf. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.  

#making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

#making decisions respecting with whom the child will live and associate;

#making decisions respecting the child's education and participation in extracurricular activities;

#giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;

#applying for a passport, licence or permit for the child;

#giving, refusing or withdrawing consent for the child, if consent is required;

#receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; and,

#requesting and receiving from third parties health, education or other information respecting the child.

===Appointing Standby Guardians===

Under s. 55 of the ''Family Law Act'', where a guardian is facing a terminal illness or permanent loss of mental capacity, the guardian can appoint someone to become guardian when he or she becomes incapable of continuing to act as guardian.

Appointments are made by Form 2, a form set out in the Family Law Act Regulation. The guardian must sign the form in the presence of two witnesses, neither of whom are the guardian being appointed. The form must state the conditions that have to be met for the appointment to take effect, such as a doctor's certificate of incapacity. A guardian cannot appoint a guardian to act with any more parental responsibilities than those he or she had at the time of the appointment.

===Appointing Testamentary Guardians===

Under s. 53 of the ''Family Law Act'', a guardian can appoint someone to become guardian when he or she dies.

 

* <span style="color: red;">bulleted list of linked legislation referred to in page</span>

FLA, FLA Regn, SCFR, PCFR, etc.

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