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

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<blockquote><blockquote><tt>(c) the parent regularly cares for the child.</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the parent regularly cares for the child.</tt></blockquote></blockquote>


Putting this another way, under s. 39(1), parents who lived together for some period of time after their child was born (birth is when you become a parent) are presumed to be the guardians of their child during their relationship and after they separate.  
Putting this another way, under section 39(1), parents who lived together for some period of time after their child was born (birth is when you become a parent) are presumed to be the guardians of their child during their relationship and after they separate.  


Parents who didn't live together, on the other hand, aren't guardians unless:  
Parents who didn't live together, on the other hand, aren't guardians unless:  
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===Being a guardian===
===Being a guardian===


People who are guardians by the operation of s. 39 of the ''[[Family Law Act]]'', for example, if they are the child's parents who have lived together after the child is born, or a parent who has regularly cared for a child after the child's birth, don't need to obtain a court order or declaration stating that they are guardians.  At law, a parent guardian should not need to ask the court for what they already have. This is really important because if you don't need to start a court proceeding to become a guardian, you shouldn't.
People who are guardians by the operation of section 39 of the ''[[Family Law Act]]'', for example, if they are the child's parents who have lived together after the child is born, or a parent who has regularly cared for a child after the child's birth, don't need to obtain a court order or declaration stating that they are guardians.  At law, a parent guardian should not need to ask the court for what they already have. This is really important because if you don't need to start a court proceeding to become a guardian, you shouldn't.


That said, it's unlikely that too many people are going to be aware of the presumptions of guardianship that s. 39 talks about, and you may have problems dealing with people like doctors, teachers, police, and border guards if after separation, you do not have an order or agreement confirming that you are a guardian of your child (particularly if you do not share the last name of your child, or your name is not on the child's birth certificate).  
That said, it's unlikely that too many people are going to be aware of the presumptions of guardianship that section 39 talks about, and you may have problems dealing with people like doctors, teachers, police, and border guards if after separation, you do not have an order or agreement confirming that you are a guardian of your child (particularly if you do not share the last name of your child, or your name is not on the child's birth certificate).  


Parents (generally fathers) who were not living with the other parent (generally the birth mother) at the time the child was born, but who believe that they are a guardian because they regularly care for their child will want some kind of confirmation that they are their child's guardian. This is when an agreement between the parents or a declaration by the court is useful. Obviously, regular care is a matter of <span class="noglossary">opinion</span>, and if there is a disagreement, some kind of decision or declaration will need to be made saying whether or not the parent who claims guardianship is in fact a guardian. See, for example, the decision, ''[http://canlii.ca/t/hqpn1 Doyle v. Handley]'', 2018 BCSC 293. Even though the father did not cohabit with the mother at the time of the child's birth, the court found him to be a guardian since he regularly cared for the child after the child was born.
Parents (generally fathers) who were not living with the other parent (generally the birth mother) at the time the child was born, but who believe that they are a guardian because they regularly care for their child will want some kind of confirmation that they are their child's guardian. This is when an agreement between the parents or a declaration by the court is useful. Obviously, regular care is a matter of <span class="noglossary">opinion</span>, and if there is a disagreement, some kind of decision or declaration will need to be made saying whether or not the parent who claims guardianship is in fact a guardian. See, for example, the decision, ''[http://canlii.ca/t/hqpn1 Doyle v. Handley]'', 2018 BCSC 293. Even though the father did not cohabit with the mother at the time of the child's birth, the court found him to be a guardian since he regularly cared for the child after the child was born.
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====Agreements====
====Agreements====


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.
If you are a parent, you can become a guardian under section 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.


Guardians cannot make an agreement appointing anyone other than a parent as a guardian.
Guardians cannot make an agreement appointing anyone other than a parent as a guardian.
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====Applying to court====
====Applying to court====


Parents and other people can apply to be made a guardian under s. 51 of the ''[[Family Law Act]]''. This 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.
Parents and other people can apply to be made a guardian under section 51 of the ''[[Family Law Act]]''. This 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 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] requires the applicant to provide a special affidavit in Form 34, sworn no more than seven days before it is filed in court, which talks about:
In the Provincial Court, Rule 18.1 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] requires the applicant to provide a special affidavit in Form 34, sworn no more than seven days before it is filed in court, which talks about:
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====Appointment by will or Form 2 Appointment====
====Appointment by will or Form 2 Appointment====


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


Standby guardians are appointed when the appointing guardian completes an Appointment in Form 2 of the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Testamentary guardians can be appointed through Form 2 or in the appointing guardian's will. This is discussed in more detail below, in the discussion about the incapacity and death of a guardian.
Standby guardians are appointed when the appointing guardian completes an Appointment of Standby or Testamentary Guardian in Form 2 of the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Testamentary guardians can be appointed through Form 2 or in the appointing guardian's will. This is discussed in more detail below, in the discussion about the incapacity and death of a guardian.


==Parental responsibilities and parenting time==
==Parental responsibilities and parenting time==
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Third, the court must not make any assumptions about how parental responsibilities and parenting time are to be divided.
Third, the court must not make any assumptions about how parental responsibilities and parenting time are to be divided.


Parental responsibilities are listed at s. 41:
Parental responsibilities are listed at section 41:


<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
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<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>


This list is not a closed list. If there's something important to the child that's not listed in (a) to (k), you can probably have the issue addressed under (l). Note also that guardians are required, under s. 43(1), to always exercise their parental responsibilities in the best interests of the child.
This list is not a closed list. If there's something important to the child that's not listed in (a) to (k), you can probably have the issue addressed under (l). Note also that guardians are required, under section 43(1), to always exercise their parental responsibilities in the best interests of the child.


The above list references the ''Infants Act'', which is a piece of provincial legislation that deals with, among other matters, the consent of a “mature minor” for healthcare decision-making. Parents who are separating and looking to define parental responsibilities in a parenting plan should nevertheless be aware that if their child is considered a mature minor, that child may be able to make his or her own healthcare decisions.  
The above list references the ''Infants Act'', which is a piece of provincial legislation that deals with, among other matters, the consent of a “mature minor” for healthcare decision-making. Parents who are separating and looking to define parental responsibilities in a parenting plan should nevertheless be aware that if their child is considered a mature minor, that child may be able to make his or her own healthcare decisions.  
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Basically, you have a few choices if it becomes important to formalize the parenting arrangements for a child. You can come up with an agreement with the other guardians, by negotiation, mediation, or a collaborative settlement process, or, if you can't agree, you can go to court or you can elect to use family law arbitration to obtain a decision from a third party. Arbitration, like mediation, is an elective process. However, unlike mediation, in arbitration if the parties cannot agree, the arbitrator will make a final and binding decision.  
Basically, you have a few choices if it becomes important to formalize the parenting arrangements for a child. You can come up with an agreement with the other guardians, by negotiation, mediation, or a collaborative settlement process, or, if you can't agree, you can go to court or you can elect to use family law arbitration to obtain a decision from a third party. Arbitration, like mediation, is an elective process. However, unlike mediation, in arbitration if the parties cannot agree, the arbitrator will make a final and binding decision.  


It sometimes takes a while for guardians to get to the point where they feel they must get something formal in place. Sometimes, people are just content with the status quo. In cases like this, where a stable parenting arrangement has managed to gel over time, s. 48 of the ''Family Law Act'' says that a guardian shouldn't make unilateral changes to those arrangements without talking to the other guardians first:
It sometimes takes a while for guardians to get to the point where they feel they must get something formal in place. Sometimes, people are just content with the status quo. In cases like this, where a stable parenting arrangement has managed to gel over time, section 48 of the ''Family Law Act'' says that a guardian shouldn't make unilateral changes to those arrangements without talking to the other guardians first:


<blockquote><tt>(1) If</tt></blockquote>
<blockquote><tt>(1) If</tt></blockquote>
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<blockquote><blockquote><tt>(b) an order under section 45.</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) an order under section 45.</tt></blockquote></blockquote>


When formal arrangements are required, s. 44 of the ''Family Law Act'' allows two or more of a child's guardians to make an agreement about the allocation of parental responsibilities and parenting time, as well as how disputes about those parenting arrangements will be resolved. (Agreements like these can't be made until the guardians have separated or are about to separate.) If agreement is impossible, a guardian can apply for a court order about parenting arrangements under s. 45 of the Act.
When formal arrangements are required, section 44 of the ''Family Law Act'' allows two or more of a child's guardians to make an agreement about the allocation of parental responsibilities and parenting time, as well as how disputes about those parenting arrangements will be resolved. (Agreements like these can't be made until the guardians have separated or are about to separate.) If agreement is impossible, a guardian can apply for a court order about parenting arrangements under section 45 of the Act.


When a child has more than one guardian, the guardians need to work together and cooperate in raising the child. This can sometimes be difficult, particularly when there is a lot of conflict in the guardians' relationship with one another. Before the ''Family Law Act'' came into effect, the rights and obligations involved in raising children were usually addressed through a joint guardianship order under the ''Family Relations Act''. The ''Family Law Act'' doesn't talk about guardianship the way the old law did and can't be used to spell out guardians' rights and obligations.
When a child has more than one guardian, the guardians need to work together and cooperate in raising the child. This can sometimes be difficult, particularly when there is a lot of conflict in the guardians' relationship with one another. Before the ''Family Law Act'' came into effect, the rights and obligations involved in raising children were usually addressed through a joint guardianship order under the ''Family Relations Act''. The ''Family Law Act'' doesn't talk about guardianship the way the old law did and can't be used to spell out guardians' rights and obligations.


The court can make orders about which guardian exercises parental responsibilities, so that one parent may have parental responsibilities over medical decisions, and the other over educational decisions. If the agreement or court order does not spell out who exercises which parental responsibility, then it is presumed that the guardians share all of the parental responsibilities and the guardians must therefore cooperate and make their decisions jointly. If no agreement can be reached by the guardians, an application may be made to court under s. 40 of the ''Family Law Act'', and the court can make those decisions instead or determine who can make the decision.
The court can make orders about which guardian exercises parental responsibilities, so that one parent may have parental responsibilities over medical decisions, and the other over educational decisions. If the agreement or court order does not spell out who exercises which parental responsibility, then it is presumed that the guardians share all of the parental responsibilities and the guardians must therefore cooperate and make their decisions jointly. If no agreement can be reached by the guardians, an application may be made to court under section 40 of the ''Family Law Act'', and the court can make those decisions instead or determine who can make the decision.


==Contact==
==Contact==


The time a person who is not a guardian has with a child is called ''contact''. Where a child's parent is not that child's guardian, the time that the parent spends with the child will be considered contact time. 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:
The time a person who is not a guardian has with a child is called ''contact''. Where a child's parent is not that child's guardian, the time that the parent spends with the child will be considered contact time. 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 section 1 of the Act:


<blockquote><tt>'''contact with a child''' or '''contact with the child''' means contact between a child and a person, other than the child's guardian, the terms of which are set out in an agreement or order</tt></blockquote>
<blockquote><tt>'''contact with a child''' or '''contact with the child''' means contact between a child and a person, other than the child's guardian, the terms of which are set out in an agreement or order</tt></blockquote>


A schedule of contact can be set by agreement between the person seeking contact with a child 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.
A schedule of contact can be set by agreement between the person seeking contact with a child and the child's guardians under section 58 of the ''[[Family Law Act]]'', or a schedule of contact can be fixed by a court order made under section 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==
==Incapacity and death of a guardian==
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===Temporary authorizations===
===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 their behalf. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.  
Under section 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 their behalf. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.  


The parental responsibilities that someone can exercise under a written authorization are:
The parental responsibilities that someone can exercise under a written authorization are:
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===Appointing standby guardians===
===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 they become incapable of continuing to act as guardian.
Under section 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 they become incapable of continuing to act as guardian.


Appointments are made by Form 2, a form set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. The guardian must sign the form in the presence of two witnesses, neither of whom is 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 they had at the time of the appointment.
Appointments are made by Form 2, a form set out in the [http://canlii.ca/t/8rdx Family Law Act Regulation]. The guardian must sign the form in the presence of two witnesses, neither of whom is 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 they had at the time of the appointment.
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For the appointment to be effective, a person appointed as a standby guardian must accept the appointment.
For the appointment to be effective, a person appointed as a standby guardian must accept the appointment.


A person who is appointed as a standby guardian does not have to apply for appointment under s. 51 of the act, and continues to serve as the guardian of the child after the death of the appointing guardian.
A person who is appointed as a standby guardian does not have to apply for appointment under section 51 of the act, and continues to serve as the guardian of the child after the death of the appointing guardian.


===Appointing testamentary guardians===
===Appointing testamentary guardians===


Under s. 53 of the ''[[Family Law Act]]'', a guardian can appoint someone to become guardian when they die.
Under section 53 of the ''[[Family Law Act]]'', a guardian can appoint someone to become guardian when they die.


Appointments are made either by Form 2 or in the guardian's will. For appointments made using Form 2, the guardian must sign the form in the presence of two witnesses, neither of whom is the guardian being appointed. A guardian cannot appoint a guardian to act with any more parental responsibilities than those they had at the time of the appointment.
Appointments are made either by Form 2 or in the guardian's will. For appointments made using Form 2, the guardian must sign the form in the presence of two witnesses, neither of whom is the guardian being appointed. A guardian cannot appoint a guardian to act with any more parental responsibilities than those they had at the time of the appointment.
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