Guardianship, Parenting Arrangements and Contact

From Clicklaw Wikibooks

Guardianship is a very old concept that goes back to the law of ancient Rome. Although guardianship can be hard to define, it's probably easiest to think of guardianship as the full bundle of rights and duties involved in caring for and raising a childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.". Historically, guardianship had two aspects: guardianship of the person and guardianship of the estateIn law, all of the personal property and real property that a person owns or in which they have an interest, usually in connection with the prospect or event of the person's death.. Guardianship is still about parental authority. Parents can be, and usually are, the guardians of a child. Other people can be guardians too, including grandparents and stepparents, and the people who are made guardians by a guardianA person charged with the legal care of someone under a legal disability. A term under the ''Family Law Act'' referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time."'s will.

This section talks about who is presumed to be the guardian of a child, how people can apply to be appointed as the guardian of a child, and how people can become a guardian upon the death of a guardian. It also talks about the rights and obligations involved in being a guardian, parental responsibilitiesA term under the ''Family Law Act'' which describes the various rights, duties and responsibilities exercised by guardians in the care, upbringing and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian." and parenting timeA term under the ''Family Law Act'' which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian.", and about contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities.", which is the time that someone who isn't a guardian may have with a child.

Introduction

The provincial Family Law Act talks about the care of children in terms of guardians and the rights and duties they have for 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 orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." appointing them as guardians and people who are made guardians by a guardian's will.

Guardians raise the children in their care by exercising parental responsibilities in the best interests of the children. Parental responsibilities include deciding where a child goes to school, how a sick child is treated, whether a child is raised in a religion, and what sports the child plays after school. All of a child's guardians can exercise all parental responsibilities, or parental responsibilities can be divided between guardians, so that only one or more guardians have the right to make decisions about a particular issue. The concept joint guardianship is not incorporated into the Family Law Act; however many people, including judges, still use that language in error.

The time a guardian has with a child is called parenting time. During parenting time, a guardian is responsible for the care of the child and has decision-making authority about day-to-day issues.

People who are not guardians, including parents who are not guardians, do not have parental responsibilities. Their time with a child is called contact. A person who is not a guardian does not have decision-making authority when the child is in their care.

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:

(1) While a child's parents are living together and after the child's parents separate, each parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." of the child is the child's guardian.
(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child's guardian.
(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies:
(a) section 30 applies and the person is a parent under that section;
(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian;
(c) the parent regularly cares for the child.

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.

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

  • they are parents because of an assisted reproduction agreement,
  • the parent and all of the child's guardians made an agreement that the parent would be a guardian, or,
  • the parent regularly cares for the child.

This chapter will discuss what regularly cares for actually means.

People who aren't guardians, including parents who aren't guardians, don't have the right to say how a child is raised or be involved in decision-making about the child. If a guardian plans on moving with the child, people who aren't guardians don't have the right to object.

Being a guardian means that you, along with any other guardians, have the obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." to make decisions on behalf of a child and the right to determine how the child is raised. Guardians are presumed to be entitled to manage children's propertySomething which can be owned. See "chattels" and "real property." worth less than $10,000. A guardian can object if another guardian wants to move, with the child or without, and a guardian can make another person a guardian of the child in their will.

Most of the time, a parent will want to be a guardian of their child.

Being a guardian

People who are guardians under s. 39 of the Family Law Act are guardians and don't need to obtain a court order stating that they are guardians. At law you should not need a court order or declarationIn law, a pronouncement of the court about a fact or a state of affairs, such as a declaration that a marriage is void or that a person is the guardian of a child. Not to be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something. See "order." under s. 39; 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 proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. 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 separationIn family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of.", 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 opinion, and if there is a disagreement, some kind of decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." 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 rather unusual case of A.A.A.M. v. B.C..

Becoming a guardian

If you are not a guardian of a child and you want to become a guardian, your choices depend on your relationship to the child and the views of the child's other guardians:

  • If you are a parent, you can become a guardian by an agreement with the child's guardians.
  • If you are not a parent or if the other guardians aren't inclined to agree, you can only become a guardian by making an application to court to be made a guardian.
  • You can also become a guardian, whether you're a parent or not, through a guardian's will or signed Form 2 Appointment when the guardian dies or becomes incapacitated.

If you are the new spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." or partner of a guardian of a child, you do not become a guardian of the child just because of your relationship with the guardian. If you would like to be the guardian of your stepchild, you should consider applying for an order appointing you as one of the child's guardians.

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.

Guardians cannot make an agreement appointing anyone other than a parent as a guardian.

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 applicantA party who brings an application to the court for a specific order or remedy. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application.", to provide certain information about why the order would be in the best interests of the child.

In the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a court proceeding. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction.", Rule 18.1 of the 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, 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.

Rule 18.1 also requires that the applicant supply a criminal records check and a records check from the Ministry for Children and Family Development dated within 60 days of the filing of the affidavitA legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally in court. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit to confirm the truth of the affidavit. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements as a witness. See "deponent" and "witness.".

Rule 15-2.1 of the Supreme Court Family Rules says much the same thing and also requires that a special affidavit, in Form F101, be sworn at least 28 days before a hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." where people will present arguments, or at least seven days before filing if there will not be a hearing. The records checks must be done no more than 60 days before the date of the hearing.

You can find links to and examples of forms, including Form 34 and Form F101, in Provincial Court Forms & Examples and Supreme Court Forms & Examples.

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 actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations.". 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.

Standby guardians are appointed when the appointing guardian completes an Appointment in Form 2 of the 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

People who are the guardians of a child have parental responsibilities for that child and their time with the child is called parenting time. Together, parental responsibilities and parenting time are known as parenting arrangementsA term under the ''Family Law Act'' which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time.". Section 40 of the Family Law Act talks about who has parental responsibilities and parenting time and how they are shared:

(1) Only a guardian may have parental responsibilities and parenting time with respect to a child.
(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances.
(3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by
(a) one or more guardians only, or
(b) each guardian acting separately or all guardians acting together.
(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:
(a) that parental responsibilities should be allocated equally among guardians;
(b) that parenting time should be shared equally among guardians;
(c) that decisions among guardians should be made separately or together.

This section says a few important things.

First, guardians are presumed to exercise all parental responsibilities until an order or agreement says otherwise, and guardians are required to consult with each other in the exercise of these responsibilities.

Second, if you do have an order or agreement, the order or agreement can require guardians to share certain parental responsibilities or divide them so that a particular responsibility will only be exercised by one or more guardians acting on their own.

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:

(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;
(b) making decisions respecting where the child will reside;
(c) making decisions respecting with whom the child will live and associate;
(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;
(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;
(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;
(h) giving, refusing or withdrawing consent for the child, if consent is required;
(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
(j) requesting and receiving from third parties health, education or other information respecting the child;
(k) subject to any applicable provincial legislationAn act; a statute; a written law made by a government. See "regulations.",
(i) starting, defending, compromising or settling any proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." relating to the child, and
(ii) identifying, advancing and protecting the child's legal and financial interests;
(l) exercising any other responsibilities reasonably necessary to nurture the child's development.

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.

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

(1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order.
(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

Basically, you have two 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 negotiationIn family law, the process by which an agreement is formed between the parties to a legal dispute resolving that dispute, usually requiring mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements.", mediationA dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator.", or a collaborative settlementA resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer." process, or, if you can't agree, you can go to court. 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:

(1) If
(a) no agreement or order respecting parenting arrangements applies in respect of a child, and
(b) the child's guardians have had in place informal parenting arrangements for a period of time sufficient for those parenting arrangements to have been established as a normal part of that child's routine,
a child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to those arrangements, unless consultation would be unreasonable or inappropriate in the circumstances.
(2) Nothing in subsection (1) prevents a child's guardian from seeking
(a) an agreement respecting parenting arrangements, or
(b) an order under section 45.

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 arrangement 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 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.

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:

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

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.

Incapacity and death of a guardian

When a guardian anticipates being unable to care for a child, either temporarily or permanently, the guardian may appoint a person to act in their place. No matter the age or health of a guardian, it is always a good idea for a guardian to give some thought to the question of who would look after the child in the event of the guardian's unexpected death and to record those arrangements in a Will or in one of the forms described below.

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.

The parental responsibilities that someone can exercise under a written authorization are:

  • 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 about the child.

Authorizations like these are mostly used: when the child has to go somewhere else to attend school and the guardian needs to ensure the child is looked after; when the guardian is seriously ill but going to recover; and when the guardian is going to be out of commission for a while to recover from a surgery or treatment.

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.

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 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.

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.

Appointing testamentary guardians

Under s. 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.

A person appointed as a testamentary guardian must accept the appointment for the appointment to be effective.

Resources and links

Legislation

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