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Difference between revisions of "Parenting Orders, Guardianship, and Contact (3:XI)"

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Parenting Orders, Guardianship, and Contact (3:XI) (view source)

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Guardianship may be the most important aspect of any legal arrangements concerning the care and control of the children. Guardianship encompasses the whole bundle of rights and obligations involved in parenting a child, including making decisions about the child’s school, moral instruction, religion, health care, dental care, extracurricular activities, etc.  
Guardianship may be the most important aspect of any legal arrangements concerning the care and control of the children. Guardianship encompasses the whole bundle of rights and obligations involved in parenting a child, including making decisions about the child’s school, moral instruction, religion, health care, dental care, extracurricular activities, etc.  


When they are still together, parents are presumed to be joint guardians, playing a “full and active role” in the upbringing of the child (see ''e.g.'' [http://canlii.ca/t/23r7t ''Charlton v Charlton'']). Upon marital breakdown, this can change either by agreement, by order of the Court, or by the operation of section 39 of the ''FLA'', which defines whether someone is a guardian.   
When they are still together, both parents are presumed to be guardians, pursuant to a statutory presumption set out in section 39 of the FLA, playing a “full and active role” in the upbringing of the child (see ''e.g.'' [http://canlii.ca/t/23r7t ''Charlton v Charlton'']). Upon marital breakdown, this can change either by agreement or by order of the Court.   


Under the ''FLA'', guardianship is primarily governed by sections 39, 41, and 42.   
Under the ''FLA'', guardianship is primarily governed by sections 39, 41, and 42.   


Parents can also appoint a guardian in a will. If the parents are both dead or have abandoned the child,the Public Guardian and Trustee becomes the child’s guardian.  
Parents can also appoint a guardian in a will. If the parents are both dead or have abandoned the child, the Public Guardian and Trustee becomes the child’s guardian.  


While a child’s parents are living together and after the child’s parents separate, each parent of the child is the child’s guardian (s 39). However, an agreement may be made to provide that a parent is not the child’s guardian. A parent who has never resided with a child is not the child’s guardian unless there is an agreement made under section 30 of the ''FLA'', the parent and all of the child’s guardians make an agreement providing that the parent is also a guardian, or the parent regularly cares for the child. Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship.  
While a child’s parents are living together and after the child’s parents separate, each parent of the child is presumed to be the child’s guardian (s 39). However, an agreement may be made to provide that a parent is not the child’s guardian after the parents separate or when the parents are about to separate.
 
Section 39 of the FLA also provides for three other scenarios under which a parent is presumed to be a guardian. A parent who has never resided with a child is not the child’s guardian unless:
* 1) there is an agreement made under section 30 of the FLA,  
* 2) the parent and all of the child’s guardians make an agreement providing that the parent is also a guardian, or  
* 3) the parent regularly cares for the child.
 
Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship. 
 
A person who is not a parent or a parent who is not a guardian may become a guardian of the child by court order, pursuant to section 50 of the FLA. The person applying to court for a guardianship order must demonstrate why it would be in the best interests of the child and provide notice to all of the child’s guardians and adults with whom the child resides (s. 51). If the child is over 12, the child’s written consent is also required. The evidentiary requirements to obtain such an order are set out under the Supreme Court Family Rules Rule 15-2.1 and the Provincial Court (Family) Rules Rule 18.1. The applicant must provide:
 
* 1. An affidavit setting out the following information:
**a. the nature and length of the applicant’s relationship with the child,
**b. the child's living arrangements,
**c. a detailed plan for how the applicant going to care for the child,
**d. information about any other children in the applicant’s care,
**e. information about any incidents of family violence that may affect the child, and
**f. information about any family or child protection court proceedings the applicant has been involved in;
*2. A Ministry of Children and Family Development records check;
*3. A Protection Order Registry records check; and
*4. A criminal records check.
 
If an application is made for guardianship of a treaty First Nation’s child, the child’s First Nation’s government must be served notice of the application and has standing in the proceeding (ss. 208 and 209).
 
At the time of birth, the two parents of a child are presumed to be its birth mother and its biological father unless the child was born as a result of assisted reproduction (section 26, ''FLA''). Assisted reproduction has, at present, always included the use of one or more of donated eggs, donated sperm, and the cooperation of a woman who is willing to carry the baby to term. Section 24 of the FLA clarifies that a donor of eggs or sperm is not the parent of a child on the basis of their biological contribution alone – donors cannot be made to pay child support unless there is some other connection to the child which justifies holding that the person is a parent under the FLA. If a donor wishes to be regarded as a parent, written agreements can be drafted and signed before the child’s birth which would substantiate their parental claim under the FLA. Unlike donors, surrogate mothers are presumed to be a parent of the child under the FLA since they are the birth mother. However, this presumption can be overcome by the intended parents and the surrogate mother signing a written agreement before the child is conceived which states that the surrogate mother will not be a parent to that child. Without such an agreement, the surrogate mother and biological father would be the presumed parents.


Section 41 of the ''FLA'' lists out the parental responsibilities with respect to a child:  
Section 41 of the ''FLA'' lists out the parental responsibilities with respect to a child:  
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Additionally, Division 6 of Part 4 of the new ''FLA'' states that if you are a child’s guardian and you want to relocate with the child, you must give any other person who can contact the child 60 days’ notice which includes both the date of the relocation and the name of the proposed location. The Court may not grant an exemption to give notice if it is satisfied that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child. Once notice is given, a child’s guardians and persons having contact with the child must use their best efforts to resolve any issues relating to the proposed relocation. The proposed relocation may occur unless another guardian of the child files an application to prohibit the relocation within 30 days of receiving notice. The Court will make its decision based on s 37 of the ''FLA'' considering what would be in the best interests of the child.  
Additionally, Division 6 of Part 4 of the new ''FLA'' states that if you are a child’s guardian and you want to relocate with the child, you must give any other person who can contact the child 60 days’ notice which includes both the date of the relocation and the name of the proposed location. The Court may not grant an exemption to give notice if it is satisfied that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child or there is no ongoing relationship between the child and the other guardian or the person having contact with the child. Once notice is given, a child’s guardians and persons having contact with the child must use their best efforts to resolve any issues relating to the proposed relocation. The proposed relocation may occur unless another guardian of the child files an application to prohibit the relocation within 30 days of receiving notice. The Court will make its decision based on s 37 of the ''FLA'' considering what would be in the best interests of the child.  


=== 1. Guardianship ===
=== 1. Terminating Guardianship ===


==== a) Sole Guardianship ====
Sole guardianship and joint guardianship are not terms used in the ''FLA''.  The parents or a court may decide that one parent should be the only guardian of the child.  This terminates the presumption of guardianship for the other parent.  The parents may terminate one parent’s guardianship via written agreement (s. 39). The court can terminate one parent’s guardianship pursuant to section 51 of the ''FLA''.  This is an extreme step, taken only when one parent has been shown to be either uninterested in or incapable of proper parenting. 


Sole Guardianship and Joint Guardianship are not terms used in the ''FLA''. The parents or a court may decide that one parent should be the sole guardian. This terminates the presumption of guardianship for the other parent. This is an extreme step, taken only when one parent has been shown to be either uninterested in or incapable of proper parenting.
=== 2. Both Parents are Guardians ===


==== b) Joint Guardianship ====
Under the ''FLA'', the standard guardianship agreement, wherein both parents are or remain guardians, is structured such that parental responsibilities and parenting time are specified in the agreement, with specific provisions which govern the allocation of parenting responsibilities. If no such provisions are included, then each party may exercise all parental responsibilities in consultation with the other guardians (''FLA'' section 40(2)).


A court will order or the parents will agree to joint guardianship, setting out the party’s duties to one another in some detail. The standard arrangement under the ''FLA'', set out below, is known as the Joyce Model, a set of rules frequently incorporated in court orders and separation agreements, despite not being explicitly cited by the new act or its interpretors.  
The following are standard elements typically included in guardianship agreements:
*a) Both parents equally have all of the parental responsibilities of guardians [with any exceptions listed].
*b) A guardian, after becoming aware of important information relating to the child not known to the other guardian(s), must immediately notify the other guardian(s) about that information.
*c) Subject to other clauses in the agreement, both guardians must consult about any important decisions that must be made and try to reach agreement concerning these important decisions.
* d) During parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child provided that the guardian must advise the other parent of any matters of a significant nature affecting the child.
*e) Optionally, the agreement may specify that if one guardian dies, the remaining guardian will assume all parenting responsibilities.  


The parties are to share joint guardianship of the child, defined as follows:
Also, agreements will typically include a dispute resolution clause which governs the situation where the guardians cannot reach agreement over one of their shared responsibilities. The options include:
*a) the parents are to be the joint guardians of the estate of the child;
*a) one parent has the final word, however the other party can apply to court if they disagree with the deciding parent. In particularly high-conflict cases, giving one parent decision-making authority may be the only solution ([http://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc2409/2015bcsc2409.html?autocompleteStr=BCSC%202409&autocompletePos=1 ''Friedlander v Claman'', 2015 BCSC 2409]);
*b) in the event of the death of either parent, the remaining parent will be the sole guardian of the person of the child;
*b) the parties go to mediation, wherein the mediator will have the final word if the parties cannot agree;
*c) the parent who has the primary responsibility for the day-to-day care of the child will have the obligation to advise the other parent of any matters of a significant nature affecting the child;
*c) the parties go to a parenting coordinator who has decision-making authority;
*d) the parent who has primary care will have the obligation to discuss with the other parent any significant decisions which have to be made concerning the child, including significant decisions concerning the health (except emergency decisions), education, religious instruction, and general welfare of the child;  
*d) other collaborative law processes; or
*e) the parent who does not have primary care will have the obligation to discuss the foregoing issues with the parent and each parent shall have the obligation to try to reach agreement on those major decisions;  
*e) the parties can resolve the matter in court.
*f) in the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, the primary care parent shall have the right to make such decision;  
*g) the other parent shall have the right to seek a review of any decision which that parent considers contrary to the best interest of the child; and
*h) each parent will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers.


Under the ''FLA'', the standard Guardianship provisions have changed somewhat to reference the sharing of responsibilities set out at Section 41 of the ''FLA'' with a decision making clause in the event that the parties cannot agree on how to exercise a particular responsibility.




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