Guardianship, Parenting Arrangements and Contact: Difference between revisions
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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 become guardians through 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, the time that someone who isn't a guardian may have with a child. | ||
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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. | ||
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. | ||
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===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 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. A parent does not need to ask the court for what he or she already has. | ||
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 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. | ||
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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. | 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. | ||
Rule 15-2.1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] says much the same thing | Rule 15-2.1 of the [http://canlii.ca/t/8mcr 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 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. | ||
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 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]]. | ||
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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, 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 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'' | 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''. 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 the guardians must 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== | ==Contact== | ||
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* [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] | ||
===Links=== | ===Links=== | ||
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{{REVIEWED | reviewer = [[ | {{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Justin Werb]], February 18, 2015}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||