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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, 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.   
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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 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.
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).  Upon marital breakdown, this can change either by agreement or by order of the Court.


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:
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:
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Additionally, a person does not become a child’s guardian by reason only of marriage or a marriage-like relationship.   
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 Rules 26, 51, and 172. The applicant must provide:
At the time of birth, the two parents of a child are presumed to be its biological parents 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, surrogates are presumed to be a parent of the child under the FLA since they are the birth parent. However, this presumption can be overcome by the intended parents and the surrogate signing a written agreement before the child is conceived which states that the surrogate will not be a parent to that child. Without such an agreement, the surrogate and sperm-providing parent would be the presumed parents.  
 
* 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 record check.
 
Effective May 2021, the repealed Provincial Court (Family) Rules will be replaced by the new Provincial Court Family Rules found at https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/120_2020. The Guardianship Affidavit (Form 5) is included in the new Rules and requires identical information to what is stated above (see Rules 26, 51, and 172).    
 
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 their biological parents 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, surrogates are presumed to be a parent of the child under the ''FLA'' since they are the birth parent. However, this presumption can be overcome by the intended parents and the surrogate signing a written agreement before the child is conceived which states that the surrogate will not be a parent to that child. Without such an agreement, the surrogate and sperm-providing parent would be the presumed parents.
=== 1. Responsibilities of a Guardian ===


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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Section 42 of the ''FLA'' defines parenting time as time that a child is with a guardian. During this parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.  
Section 42 of the ''FLA'' defines parenting time as time that a child is with a guardian. During this parenting time, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision 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.  
=== 2. Guardianship Orders ===


=== 1. Terminating Guardianship ===
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 a Guardianship order are set out under the Supreme Court Family Rules Rule 15-2.1 and the Provincial Court Family Rules Rules 26, 51, and 172. The applicant must provide:
1. An affidavit (The Guardianship Affidavit (Form 5) for provincial jurisdiction and a Form F101 for Supreme Court) requires 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 record 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).
 
=== 3. Terminating 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 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.   


=== 2. Both Parents are Guardians ===
=== 4. Both Parents are Guardians ===


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)).  
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)).  
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*d) Other collaborative law processes; or
*d) Other collaborative law processes; or
*e) The parties can resolve the matter in court.
*e) The parties can resolve the matter in court.
=== 5. Relocation ===
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 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.


== G. Parenting Responsibilities and Parenting Time ==
== G. Parenting Responsibilities and Parenting Time ==
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