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. 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 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 they have in respect of 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 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 contact. A person who is not a guardian does not have decisions-making authority when the child is in her or her 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 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.

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 apply for an order appointing you as one of the child's guardians.

Agreements

If you are a parent, you can become a guardian under s. 39(3)(b) of the Family Law Act by making an agreement with all of the child's other guardians. If one of the child's guardians disagrees, you will have to apply to court to be made a guardian.

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

Applying to court

Parents and other people can apply to be made a guardian under s 51 of the Family Law Act. 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, Provincial Court (Family) 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.

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 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.

Links to sample and blank forms, including Form 34 and Form F101, are available in the Sample Supreme Court Forms (Family) and Sample Provincial Court Forms (Family Law).

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 responsibilities and parenting time

People who are the guardians of a child have parental responsibilities in respect of 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 s. 41:

(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

(b) making decisions respecting where the child will reside;

(c) making decisions respecting with whom the child will live and associate;

(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;

(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;

(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;

(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;

(h) giving, refusing or withdrawing consent for the child, if consent is required;

(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

(j) requesting and receiving from third parties health, education or other information respecting the child;

(k) subject to any applicable provincial 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 s. 43(1), to always exercise their parental responsibilities in the best interests of the child.

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

(1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order.

(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

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 awhile 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:

(1) If

(a) no agreement or order respecting parenting arrangements applies in respect of a child, and

(b) the child's guardians have had in place informal parenting arrangements for a period of time sufficient for those parenting arrangements to have been established as a normal part of that child's routine,

a child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to those arrangements, unless consultation would be unreasonable or inappropriate in the circumstances.

(2) Nothing in subsection (1) prevents a child's guardian from seeking

(a) an agreement respecting parenting arrangements, or

(b) an order under section 45.

When formal arrangements are required, s. 44 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.

The Joyce Model for sharing parental responsibilities

Guardians have parental responsibilities for the children in their care, which is the duty to make decisions about the children in the best interests of the children. The terms of how parental responsibilities will be handled can be vague or they can be very specific. Specific terms usually define the distribution of parental responsibilities using a set of clauses drafted by Mr. Justice Joyce (the "Joyce model") or by Master Horn (the "Horn model") or some hybrid of the two. Both models describe the rights and obligations both parents have when they are all guardians.

The Joyce model 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 decision, 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.

The Horn Model for sharing parental responsibilities

The Horn model 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, that guardian will always have the right to ask the court for directions on the subject of the other guardian's decision.

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:

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 and the child's guardians under s. 58 of the Family Law Act, or a schedule of contact can be fixed by a court order made under s. 59. Agreements for contact are only good if they are signed by all of the child's guardians who have the parental responsibility of determining who can have contact with the child.

Incapacity and death of a guardian

When a guardian anticipates being unable to care for a child, either temporarily or permanently, the guardian may appoint a person to act in 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 is the guardian's unexpected death.

Temporary authorizations

Under s. 43(2) of the Family Law Act, a guardian who is temporarily unable to exercise certain parental responsibilities may authorize someone to exercise those responsibilities on his or her behalf. Such authorizations must be made in writing, and should say exactly what it is that the authorized person can do.

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

• making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child,
• making decisions respecting with whom the child will live and associate,
• making decisions respecting the child's education and participation in extracurricular activities,
• giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child,
• applying for a passport, licence or permit for the child,
• giving, refusing or withdrawing consent for the child, if consent is required,
• receiving and responding to any notice that a parent or guardian is entitled or required by law to receive, and
• requesting and receiving from third parties health, education or other information respecting the child.

Authorizations like these are mostly used when the child is to go somewhere else to go to school and the guardian needs to make arrangements for the child to be looked after in the place where the school is, when the guardian is seriously ill but going to recover, and when the guardian is going to be out commission for awhile recovering from a surgery or treatment.

Appointing standby guardians

Under s. 55 of the Family Law Act, where a guardian is facing a terminal illness or permanent loss of mental capacity, the guardian can appoint someone to become guardian when he or she becomes 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 are 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.

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

A person who is appointed as a standby guardian does not have to apply for appointment under s. 51 of the act, and continues to serve as the guardian of the child after the death of the appointing guardian.

Appointing testamentary guardians

Under s. 53 of the Family Law Act, a guardian can appoint someone to become guardian when he or she dies.

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 are 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.

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

Page Resources and links

Legislation

• Family Law Act
• Family Law Act Regulation
• Divorce Act
• Provincial Court (Family) Rules
• Supreme Court Family Rules

Links

• Canadian Bar Association BC Branch: Custody and access, guardianship, parenting arrangements and contact
• Legal Services Society Fact Sheet: How to become a child's guardian
• Legal Services Society's Family Law Website: Guardianship, parenting time and parental responsibilities