Difference between revisions of "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.

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.

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,  

*the parent ''regularly cares'' for the child.  

 

This chapter will discuss what regularly cares for actually means.

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.

People who are guardians under s. 39 of the ''[[Family Law Act]]'' (see previous section) are guardians and don't need to obtain a court order stating that they are guardians. At law you should not need a court order or declaration under s. 39; 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.

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 rather unusual case of [https://www.canlii.org/en/bc/bcca/doc/2015/2015bcca220/2015bcca220.html?autocompleteStr=A.A.A.&autocompletePos=1 ''A.A.A.M. v. B.C.''].

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, 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]]''.

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 seven 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.

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.

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 s. 1 of the Act:

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.

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 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 they had at the time of the appointment.

Under s. 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.