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. 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.

A parent who has never lived with a child can only be a guardian by agreement with the other parent; by regularly caring for the child; or, by court order.

Courts have interpreted "regularly cares for" as meaning more than occasional visits.

There is a case from the BC Court of Appeal, A.A.A.M. v. BC, 2015 BCCA 220, which found that when the Ministry of Children and Family Development controlled how often a parent could see their child, it was unfair to say that parent had not regularly cared for the child. The Court of Appeal in this case found that a parent’s intention to regularly care for a child who was in the care of the Ministry was enough to make that parent a guardian.

From intro section

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.

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.

Resources and links

Legislation

• Family Law Act
• Family Law Act Regulation
• Child, Family and Community Service Act
• Divorce Act
• Provincial Court (Family) Rules
• Supreme Court Family Rules

Links

• Justice Education Society: Parenting After Separation program
• Dial-A-Law Script "Custody and access, guardianship, parenting arrangements and contact"
• Legal Services Society's fact sheet "How to Become A Child's Guardian"
• Legal Services Society's Family Law website's information page "Parenting & guardianship"
  • See "Guardianship, parenting time and parental responsibilities"

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

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.