Guardianship, Parenting Arrangements and Contact

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. 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 page 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.

Introduction

The provincial Family Law Act talks about the care of children in terms of guardians and the rights and duties guardians have in respect of the children in their care.

A guardian's obligation to make decisions on behalf of a child and right to determine how the child is raised are called parental responsibilities.

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 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.

Not being a guardian sucks. 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 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 in his or her will.

Most of the time, a parent will want to be a guardian of his or her child.

Being a Guardian

People who are guardians because of s. 39 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.

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.

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 opinion, and it's easy to imagine a guardian not wanting to have to share that responsibility with someone else. Clearly some kind of decision or declaration will need to be made saying whether or not the parent is a guardian.

Becoming a Guardian

If you are not a guardian of a child and 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 when the guardian dies or becomes incapacitated.

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. That 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 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:

1. the Applicant's relationship with the child;
2. the child's current living arrangements;
3. the Applicant's plan for the parenting of the child;
4. any incidents of family violence that might affect the child; and,
5. 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.

The Rule also requires that the Applicant supply a criminal records check and a records check from the Ministry for Children and Family Development dated with 60 days of the filing of the affidavit.

Rule 15-2.1 of the 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 no more than 60 days from the date of the hearing.

Appointment by Will

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.

Parental Responsibiities and Parenting Time

People who are guardians

Contact

==Incapacity and Death of a Guardian

Further Reading in this Chapter

• bulleted list of other pages in this chapter, linked

Page Resources and Links

Legislation

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Links

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• list of related public resources