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Difference between revisions of "Grandparents and Extended Family Members"
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Grandparents and Extended Family Members (view source)
Revision as of 02:21, 21 May 2013
, 02:21, 21 May 2013→Rights and responsibilities of caregivers and extended family
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It's important to know, as you'll see further on in this section, that a child's guardians cannot make an agreement appointing anyone other than a parent as a guardian. Only the court can make someone other than a parent a guardian, and that requires an application to court and a court order. | It's important to know, as you'll see further on in this section, that a child's guardians cannot make an agreement appointing anyone other than a parent as a guardian. Only the court can make someone other than a parent a guardian, and that requires an application to court and a court order. | ||
==Rights and responsibilities of caregivers and extended family== | ==Rights and responsibilities of caregivers and extended family members== | ||
A child's caregivers and extended family members can ask for orders about the care of a child under the provincial ''Family Law Act''. If the child's parents are married and have an order made under the federal ''Divorce Act'', the child's caregivers and extended family members must make any applications about the child under that act and must get the court's permission first. | A child's caregivers and extended family members can ask for orders about the care of a child under the provincial ''Family Law Act''. If the child's parents are married and have an order made under the federal ''Divorce Act'', the child's caregivers and extended family members ''must'' make any applications about the child under that act and they must get the court's permission first. | ||
Where | Where a child winds up living mostly with a caregiver or extended family member, the caregiver or extended family member can ask for an order under the ''Family Law Act'' requiring either or both of the child's parents to pay child support. | ||
A child's caregivers and extended family members cannot ask for orders for spousal support from a parent under the ''Divorce Act'' or the ''Family Law Act'' as they are not spouses of the parent. For the same reason, they cannot ask for orders about the division of family property and family debt against a parent under the ''Family Law Act''. | A child's caregivers and extended family members cannot ask for orders for spousal support from a parent under the ''Divorce Act'' or the ''Family Law Act'' as they are not spouses of the parent. For the same reason, they cannot ask for orders about the division of family property and family debt against a parent under the ''Family Law Act''. | ||
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<blockquote><tt>Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote> | <blockquote><tt>Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.</tt></blockquote> | ||
Once a change in circumstances has been proven, the child's caregiver or extended family member must then show why it is in the best interests of the child for the court to make the order he or she is asking for, and the court will usually extend a great deal of respect to the wishes of the child's parents. These issues are discussed in more detail in the chapter [[Children in Family Law Matters]] | Once a change in circumstances has been proven, the child's caregiver or extended family member must then show why it is in the best interests of the child for the court to make the order he or she is asking for, and the court will usually extend a great deal of respect to the wishes of the child's parents. These issues are discussed in more detail in the chapter on [[Children in Family Law Matters|Children]], in the section [[Custody and Access]]. | ||
====The ''Family Law Act''==== | ====The ''Family Law Act''==== | ||
Whether a caregiver or extended family member is applying for guardianship, and the rights that go along with it, or for contact, he or she must show why it is in the best interests of the child for the court to make the order he or she is asking for, and the court will usually extend a great deal of respect to the wishes of the child's guardians and often, depending on the child's age and maturity, to the wishes of the child. These issues are discussed in more detail in the | Whether a caregiver or extended family member is applying for guardianship, and the rights that go along with it, or for contact, he or she must show why it is in the best interests of the child for the court to make the order he or she is asking for, and the court will usually extend a great deal of respect to the wishes of the child's guardians and often, depending on the child's age and maturity, to the wishes of the child. These issues are discussed in more detail in the section [[Guardianship, Parenting Arrangements and Contact]] in the chapter on [[Children in Family Law Matters|Children]]. | ||
=====Guardianship, parental responsibilities and parenting time===== | =====Guardianship, parental responsibilities and parenting time===== | ||
Under s. 40(1) of the ''Family Law Act'', only people who are the guardians of a child have ''parental responsibilities'' and ''parenting time'' in relation to that child. People who are not the guardians of a child may have ''contact'' with the child and do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches and so on. | Under s. 40(1) of the ''[[Family Law Act]]'', only people who are the guardians of a child have ''parental responsibilities'' and ''parenting time'' in relation to that child. People who are not the guardians of a child may have ''contact'' with the child and do not have the right to participate in making decisions about the raising of the child or the right to get information from the important people involved in the child's life, such as doctors, teachers, coaches and so on. | ||
Under s. 39, the people who are presumed to be the guardians of a child are: | Under s. 39, the people who are presumed to be the guardians of a child are: | ||
#the child's parents, as long as they | #the child's parents, as long as they lived together after the child was born, | ||
#a person who is a parent of a child under an assisted reproduction agreement, and | #a person who is a parent of a child under an assisted reproduction agreement, and | ||
#a parent who "regularly cares" for the child. | #a parent who "regularly cares" for the child. | ||
A child's | A child's caregiver or extended family member who isn't a parent under an assisted reproduction agreement is not presumed to be a guardian of the child. A caregiver or extended family member may become the guardian of a child by: | ||
#applying for an order appointing him or her as a guardian of a child under s. 51, | #applying for an order appointing him or her as a guardian of a child under s. 51, | ||
#being appointed by as the standby guardian of a child | #being appointed by as the standby guardian of a child under s. 55, or | ||
#being appointed as the guardian of a child upon the death of a guardian | #being appointed as the guardian of a child upon the death of a guardian under s. 53. | ||
Since being appointed as a standby guardian or a | Since being appointed as a standby guardian or a testamentary guardian both can take some time, a caregiver or extended family member who feels the need to step in sooner rather than later will apply for appointment as the guardian of a child under s. 51. | ||
Applications for appointment as a guardian can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. The person who is applying to become the guardian of a child, the ''applicant'', must fill out a special affidavit required by the Provincial Court Family Rules and the Supreme Court Family Rules that talks about: | Applications for appointment as a guardian can be difficult and time-consuming, and the court must be satisfied that the appointment is in the best interests of the child. The person who is applying to become the guardian of a child, the ''applicant'', must fill out a special affidavit required by the [http://canlii.ca/t/85pb Provincial Court Family Rules] and the [http://canlii.ca/t/8mcr Supreme Court Family Rules] that talks about: | ||
*the applicant's relationship to the child, | *the applicant's relationship to the child, | ||
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*any previous civil or criminal court proceedings related to the best interests of the child. | *any previous civil or criminal court proceedings related to the best interests of the child. | ||
Applicants must also get a new criminal records check and a records check from the Ministry of Children and Family Development | Applicants must also get a new criminal records check and a records check from the Ministry of Children and Family Development. | ||
=====Authorizations to exercise parental responsibilities===== | =====Authorizations to exercise parental responsibilities===== | ||