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

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{{JP Boyd on Family Law TOC|expanded = children}}
{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
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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 child. 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 become guardians through a guardian's will.
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 child. Historically, guardianship had two aspects: guardianship of the ''person'' and guardianship of the ''estate.'' 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 guardian'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 responsibilities and parenting time, and about contact, the time that someone who isn't a guardian may have with a child.
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 responsibilities and parenting time, and about contact, which is the time that someone who isn't a guardian may have with a child.


==Introduction==
==Introduction==
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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 order appointing them as guardians and people who are made guardians by a guardian's will.
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 order 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.
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 <span class="noglossary">decision-</span>making authority about day-to-day issues.
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 <span class="noglossary">decision-</span>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 ''contact''. A person who is not a guardian does not have <span class="noglossary">decision-</span>making authority when the child is in his or her care.
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 <span class="noglossary">decision-</span>making authority when the child is in their care.


==Being a guardian and becoming a guardian==
==Being a guardian and becoming a guardian==
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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. 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, if the parent "regularly cares" for the child.
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.  


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 <span class="noglossary">decision</span>-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.  
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.  


Being a guardian means that you, along with any other guardians, have the obligation 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 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 his or her will.
This chapter will discuss what ''regularly cares for'' actually means.


Most of the time, a parent will want to be a guardian of his or her child.
People who aren't guardians by the operation of section 39 of the ''Family Law Act'', including parents who aren't guardians, don't have the right to say how a child is raised or be involved in <span class="noglossary">decision</span>-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. However, a person with an order for contact time must be notified of any proposed relocation (per section 66 of the ''Family Law Act'') and can apply for orders for the purpose of maintaining the relationship if the relocation is permitted (per section 67(2)(b) of the ''Family Law Act'').
 
Being a guardian means that you, along with any other guardians, have the obligation 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 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===
===Being a guardian===


People who are guardians because of the presumptions at s. 39 of the ''[[Family Law Act]]'' are guardians and don't need to ask for an order saying they are guardians. 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 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.
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 who think they are guardians because they "regularly care" for their child will also want some kind of confirmation that they are their child's guardian. Obviously "regular care" is a matter of <span class="noglossary">opinion</span>, and it's easy to imagine a guardian not wanting to have to share that responsibility with someone else. Clearly some kind of <span class="noglossary">decision</span> or declaration will need to be made saying whether or not the parent is a guardian.
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.


===Becoming a guardian===
===Becoming a guardian===
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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 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 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.
*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.
*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.
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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 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 ''[http://canlii.ca/t/51znt Child, Family and Community Service Act]'', and the ''[[Divorce Act]]''.


#the applicant's relationship with the child,
Rule 18.1 also requires that the applicant attach the following to the affidavit:
#the child's current living arrangements,
#a criminal records check,
#the applicant's plan for the parenting of the child,
#a British Columbia Ministry of Children and Family Development records check (''MCFD records check''), and
#any incidents of family violence that might affect the child, and
#a Protection Order Registry protection order records check (''Protection Order Registry records check''.
#the applicant's involvement with other court proceedings involving children under the ''Family Law Act'', the old ''Family Relations Act'', the ''[http://canlii.ca/t/51znt Child, Family and Community Service Act]'' and the ''[[Divorce Act]]''.
These records checks are added as exhibits to the affidavit. The records checks need to be dated within 60 days of the filing of the affidavit in Provincial Court.


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 affidavit.
For Supreme Court, Rule 15-2.1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] says much the same thing, and also requires a special affidavit with the same three records checks added as exhibits. [[Form F101 Affidavit - Section 51 | Form F101]] must be sworn not more than 28 days before a hearing where people will present arguments, or not more than seven days before filing if there will not be a hearing. The records checks must be dated no more than 60 days before the date of the hearing.


Rule 15-2.1 of the [http://canlii.ca/t/8mcr 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 be done no more than 60 days before the date of the hearing.
To obtain a criminal record check the applicant must attend at their local police station.
The forms required to obtain the ''child protection records check'' from the Ministry for Children and Family Development and the ''protection order registry check'' can be found online at https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/prov-family-forms. The forms required are:
#'''Consent for Child Protection Record Check''': This form must be ''sworn'' or ''affirmed'' in front of a ''[https://www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base/commissioner-taking-affidavits commissioner for taking affidavits]'' (e.g. a lawyer, notary, Supreme Court registrar). Submit the completed form to the court registry where the application is being made.
#'''Request for Protection Order Registry Search''': This form must also be submitted to the court registry where the application is being made.


You can find links to and examples of forms, including Form 34 and Form F101, in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]] and [[Sample Supreme Court Forms (Family)|Supreme Court Forms & Examples]].
You can find links to and examples of forms, including those listed above as well as Form 34 and Form F101, in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]], [[Sample Supreme Court Forms (Family)|Supreme Court Forms & Examples]], and [[Other Forms and Documents (Family Law)]].


====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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<blockquote><blockquote><tt>(c) that decisions among guardians should be made separately or together.</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) that decisions among guardians should be made separately or together.</tt></blockquote></blockquote>


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.
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.  


Parental responsibilities are listed at s. 41:
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 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>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, <span class="noglossary">privilege</span> or other thing for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, license, permit, benefit, <span class="noglossary">privilege</span> or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</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 also references the parental responsibility of “requesting and receiving from third parties health, education or other information respecting the child.” Parents who are separating and looking to define parental responsibilities in a parenting plan should also consider the reasonable expectation of privacy of a mature minor over his or her healthcare information.
 


The ''[[Family Law Act]]'' deals with parenting time very briefly. Section 42 says this:
The ''[[Family Law Act]]'' deals with parenting time very briefly. Section 42 says this:
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<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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.</tt></blockquote>


You have basically 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 negotiation, mediation, or a collaborative settlement 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 set of arrangements has managed to gel over time, s. 48 says that a guardian shouldn't make unilateral changes to those arrangements without talking to the other guardians first:
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, 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>
<blockquote><blockquote><tt>(a) no agreement or order respecting parenting arrangements applies in respect of a child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(a) no agreement or order respecting parenting arrangements applies in respect of a child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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.</tt></blockquote></blockquote>
<blockquote><tt>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.</tt></blockquote>
<blockquote><tt>(2) Nothing in subsection (1) prevents a child's guardian from seeking</tt></blockquote>
<blockquote><tt>(2) Nothing in subsection (1) prevents a child's guardian from seeking</tt></blockquote>
<blockquote><blockquote><tt>(a) an agreement respecting parenting arrangements, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(a) an agreement respecting parenting arrangements, or</tt></blockquote></blockquote>
<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 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 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 children. 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'', in particular through two models of joint guardianship, the Horn model and the Joyce model. 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 in the same way. However, since guardians need to work together and cooperate in making parenting decisions, the models can still work. They just need to be changed a bit.
 
===The Joyce model for sharing parental responsibilities===
 
The Joyce model, created by Mr. Justice Joyce, is fairly detailed and requires the guardians to consult with one another on all important decisions affecting the child, to make their best efforts to work together to reach a solution that is in the best interests of the child, and so forth. When guardians can't agree on a <span class="noglossary">decision</span>, the Joyce model might say that one guardian will have the last word, or it might say that the parents will try to mediate the issue, consult a child psychologist about the issue, or ask a judge for directions on the issue.
 
Here's the standard version of the Joyce model adapted for people who are guardians under the ''Family Law Act'':
 
<blockquote>The guardians will exercise all parental responsibilities with respect to the child on the following terms:</blockquote>
:#in the event of the death of a guardian, the surviving guardian(s) will be the only guardian(s) of the child,
:#each guardian will have the obligation to advise the other guardian(s) of any matters of a significant nature affecting the child,
:#each guardian will have the obligation to discuss with the other guardians any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction, and general welfare,
:#the guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions,
:#in the event that the guardians cannot reach agreement on a significant <span class="noglossary">decision</span> despite their best efforts, the guardian with the majority of parenting time with the child will be entitled to make those decisions and the other guardian(s) will have the right to apply for directions on any <span class="noglossary">decision</span> the guardian(s) consider(s) contrary to the best interests of the child, under s. 49 of the ''Family Law Act'', and
:#each guardian 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-<span class="noglossary">party</span> caregivers.


You can download a version of the adapted Joyce model in PDF format in the resources section at the bottom of this page.
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 Horn model for sharing parental responsibilities===
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.
 
The Horn model, created by Master Horn, is more about the guardians' rights to get information about the child, usually about the child's schooling, health, and extracurricular activities. The Horn model implies that the guardian with whom the child mostly lives will be entitled to make decisions about the child as he or she sees fit, with the other guardian having a right to information about the child. Under s. 49 of the ''Family Law Act'', however, the other guardian will always have the right to ask the court for directions on the subject of the other guardian's <span class="noglossary">decision</span>.
 
Here's the standard version of the Horn model adapted for people who are guardians under the ''Family Law Act'':
 
<blockquote>The guardian with the majority of parenting time with the child will exercise all parental responsibilities in respect of the child and the other guardian(s) will have the right:</blockquote>
:#to be informed of the child's medical and dental practitioners,
:#to contact the child's medical and dental practitioners and obtain the child's medical and dental records,
:#to be consulted about the selection of the child's alternative caregivers, such as daycare and preschool,
:#to consult with the children's alternative caregivers and teachers,
:#to be informed of events at the child's schools or daycare so that the parent without primary care may attend,
:#to be informed of parent/teacher nights so that the other guardian(s) may attend,
:#to be consulted about any significant health issues relating to the child, and
:#to be consulted about any significant change in the child's social environment.
 
You can download a version of the adapted Horn model in PDF format in the resources section at the bottom of this page.


==Contact==
==Contact==


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:
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 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==


When a guardian anticipates being unable to care for a child, either temporarily or permanently, the guardian may appoint a person to act in his or her place. Even if when there's nothing to suggest that a guardian may become incapable, it's 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.
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===
===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.  
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:
Line 191: Line 190:
*making decisions respecting with whom the child will live and associate,
*making decisions respecting with whom the child will live and associate,
*making decisions respecting the child's education and participation in extracurricular activities,
*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,
*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,
*applying for a passport, licence, permit, benefit, privilege or other thing for the child,
*giving, refusing or withdrawing consent for the child, if consent is required,
*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
*receiving and responding to any notice that a parent or guardian is entitled or required by law to receive,  
*requesting and receiving from third-parties health, education, or other information about the child.
*requesting and receiving from third-parties health, education, or other information about the child, and
*exercising any other responsibilities reasonably necessary to nurture the child's development.


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.
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===
===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.
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 he or she 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.


A person appointed as a standby guardian must accept the appointment for the appointment to be effective.
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 he or she dies.
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 he or she 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.


A person appointed as a testamentary guardian must accept the appointment for the appointment to be effective.
A person appointed as a testamentary guardian must accept the appointment for the appointment to be effective.
Line 228: Line 231:
* ''[[Family Law Act]]''
* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* ''[http://canlii.ca/t/51znt Child, Family and Community Service Act]''  
* ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]''  
* ''[[Divorce Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/85pb Provincial Court (Family) Rules]
* [http://canlii.ca/t/85pb Provincial Court (Family) Rules]
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]


===Resources===
===Links===


* [[Media:Guardianship_-_Joyce_Model.pdf|The Joyce model for sharing parental responsibilities]] (PDF)
* [https://www.justiceeducation.ca/pas Justice Education Society: Parenting After Separation program]
* [[Media:Guardianship_-_Horn_Model.pdf|The Horn model for sharing parental responsibilities]] (PDF)
* [https://clicklaw.bc.ca/resource/1246 Dial-A-Law Script "Custody and access, guardianship, parenting arrangements and contact"]
* [https://clicklaw.bc.ca/resource/2639 Legal Services Society's fact sheet "How to Become A Child's Guardian"]
* [https://clicklaw.bc.ca/resource/4655 Legal Services Society's Family Law website's information page "Parenting & guardianship"]
** See "Guardianship, parenting time and parental responsibilities"


===Links===


* [http://www.justiceeducation.ca/programs/online-parenting-after-separation Justice Education Society: Parenting After Separation program]
{{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]], April 15, 2019}}
* [http://clicklaw.bc.ca/resource/1246 Canadian Bar Association BC Branch: Custody and access, guardianship, parenting arrangements and contact]
* [http://clicklaw.bc.ca/resource/2639 Legal Services Society Fact Sheet: How to become a child's guardian]
* [http://clicklaw.bc.ca/resource/1631 Legal Services Society's Family Law Website: Guardianship, parenting time and parental responsibilities]


{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}
{{JP Boyd on Family Law Navbox|type=chapters}}
{{JP Boyd on Family Law Navbox|type=chapters}}
  {{Creative Commons for JP Boyd}}
  {{Creative Commons for JP Boyd}}
[[Category:JP Boyd on Family Law]]

Latest revision as of 21:11, 31 July 2019

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 child. Historically, guardianship had two aspects: guardianship of the person and guardianship of the estate. 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 guardian'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 responsibilities and parenting time, and about contact, 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 order 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 parent 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 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:

  • 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 by the operation of section 39 of the Family Law Act, 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. However, a person with an order for contact time must be notified of any proposed relocation (per section 66 of the Family Law Act) and can apply for orders for the purpose of maintaining the relationship if the relocation is permitted (per section 67(2)(b) of the Family Law Act).

Being a guardian means that you, along with any other guardians, have the obligation 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 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 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 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 opinion, 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, 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.

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 spouse 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 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.

Applying to court

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 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:

  • 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 attach the following to the affidavit:

  1. a criminal records check,
  2. a British Columbia Ministry of Children and Family Development records check (MCFD records check), and
  3. a Protection Order Registry protection order records check (Protection Order Registry records check.

These records checks are added as exhibits to the affidavit. The records checks need to be dated within 60 days of the filing of the affidavit in Provincial Court.

For Supreme Court, Rule 15-2.1 of the Supreme Court Family Rules says much the same thing, and also requires a special affidavit with the same three records checks added as exhibits. Form F101 must be sworn not more than 28 days before a hearing where people will present arguments, or not more than seven days before filing if there will not be a hearing. The records checks must be dated no more than 60 days before the date of the hearing.

To obtain a criminal record check the applicant must attend at their local police station.

The forms required to obtain the child protection records check from the Ministry for Children and Family Development and the protection order registry check can be found online at https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/prov-family-forms. The forms required are:

  1. Consent for Child Protection Record Check: This form must be sworn or affirmed in front of a commissioner for taking affidavits (e.g. a lawyer, notary, Supreme Court registrar). Submit the completed form to the court registry where the application is being made.
  2. Request for Protection Order Registry Search: This form must also be submitted to the court registry where the application is being made.

You can find links to and examples of forms, including those listed above as well as Form 34 and Form F101, in Provincial Court Forms & Examples, Supreme Court Forms & Examples, and Other Forms and Documents (Family Law).

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 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 of Standby or Testamentary Guardian 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 arrangements. 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 section 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, license, 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 legislation,

(i) starting, defending, compromising or settling any proceeding 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 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 also references the parental responsibility of “requesting and receiving from third parties health, education or other information respecting the child.” Parents who are separating and looking to define parental responsibilities in a parenting plan should also consider the reasonable expectation of privacy of a mature minor over his or her healthcare information.


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 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, 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:

(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, 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.

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

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:

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 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

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 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:

  • 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, permit, benefit, privilege or other thing 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,
  • requesting and receiving from third-parties health, education, or other information about the child, and
  • exercising any other responsibilities reasonably necessary to nurture the child's development.

Authorizations like these are mostly used:

  1. when the child has to go somewhere else to attend school and the guardian needs to ensure the child is looked after,
  2. when the guardian is seriously ill but going to recover, and
  3. when the guardian is going to be out of commission for a while to recover from a surgery or treatment.

Appointing standby guardians

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 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 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

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.

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

Resources and links

Legislation

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Mary Mouat, QC and Samantha Rapoport, April 15, 2019.


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