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Difference between revisions of "Guardianship, Parenting Arrangements and Contact"
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Guardianship, Parenting Arrangements and Contact (view source)
Revision as of 23:26, 15 April 2019
, 23:26, 15 April 2019Mary and I have comprehensively reviewed
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This chapter will discuss what regularly cares for actually means. | This chapter will discuss what regularly cares for actually means. | ||
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 <span class="noglossary">decision</span>-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. | People who aren't guardians by the operation of section 39 of the ''Family Law Act'', including parents who aren't guardians, don't have the right to say how a child is raised or be involved in <span class="noglossary">decision</span>-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. However, a person with an order for contact time must be notified of any proposed relocation(per section 66 of the ''Family Law Act'') and can apply for orders for the purpose of maintaining the relationship if the relocation is permitted (per section 67(2)(b) of the ''Family Law Act''). | ||
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. | 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. | ||
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===Being a guardian=== | ===Being a guardian=== | ||
People who are guardians | People who are guardians by the operation of s. 39 of the ''[[Family Law Act]]'', for example, if they are the child's parents who have lived together after the child is born, or a parent who has regularly cared for a child after the child's birth, don't need to obtain a court order or declaration stating that they are guardians. At law, 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. | ||
That said, it's unlikely that too many people are going to be aware of the presumptions of guardianship that s. 39 talks about, and you may have problems dealing with people like doctors, teachers, police and border guards if after separation, you do not have an order or agreement confirming that you are a guardian of your child (particularly if you do not share the last name of your child, or your name is not on the child's birth certificate). | That said, it's unlikely that too many people are going to be aware of the presumptions of guardianship that s. 39 talks about, and you may have problems dealing with people like doctors, teachers, police and border guards if after separation, you do not have an order or agreement confirming that you are a guardian of your child (particularly if you do not share the last name of your child, or your name is not on the child's birth certificate). | ||
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, | 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 decision, [https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc293/2018bcsc293.html?resultIndex=1'' Doyle v. Handley ''], where the court found the father to be a guardian of the child because the father regularly cared for child after the child was born, even though the father did not cohabit with child at time of the child's birth | ||
===Becoming a guardian=== | ===Becoming a guardian=== | ||
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Parents and other people can apply to be made a guardian under s. 51 of the ''[[Family Law Act]]''. This 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. | Parents and other people can apply to be made a guardian under s. 51 of the ''[[Family Law Act]]''. This 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 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, | 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, which talks about: | ||
* the applicant's relationship with the child, | * the applicant's relationship with the child, | ||
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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. | 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 above list references the ''Infants Act'', which is a piece of provincial legislation that deals with, among other matters, the consent of a “mature minor” for healthcare decision-making. Parents who are separating and looking to define parental responsibilities in a parenting plan should nevertheless be aware that if their child is considered a mature minor, that child may be able to make his or her own healthcare decisions. | |||
The above list also references the parental responsibility of “requesting and receiving from third parties health, education or other information respecting the child.” Parents who are separating and looking to define parental responsibilities in a parenting plan should also consider the reasonable expectation of privacy of a mature minor over his or her healthcare information. | |||
The ''[[Family Law Act]]'' deals with parenting time very briefly. Section 42 says this: | The ''[[Family Law Act]]'' deals with parenting time very briefly. Section 42 says this: | ||
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<blockquote><tt>(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.</tt></blockquote> | <blockquote><tt>(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.</tt></blockquote> | ||
Basically, you have | Basically, you have a few 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 or you can elect to use family law arbitration, to obtain a decision from a third party. Arbitration, like mediation, is an elective process. However, unlike mediation, in arbitration is the parties cannot agree, the arbitrator will make a final and binding decision. | ||
It sometimes takes a while 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 parenting arrangement has managed to gel over time, s. 48 of the ''Family Law Act'' says that a guardian shouldn't make unilateral changes to those arrangements without talking to the other guardians first: | |||
<blockquote><tt>(1) If</tt></blockquote> | <blockquote><tt>(1) If</tt></blockquote> | ||
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{{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]], April | {{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]], April 15, 2019}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||