The Family Law Act does not use the term custody nor does it focus on parental or a guardian’s rights with respect to a child. Instead, the focus shifts from rights to responsibilities. The ways that guardians care for a child and the decisions guardians have to make are called “Parental Responsibilities.”
Parental Responsibilities are listed at section 41 of the Family Law Act and include:
(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.
Who May Have Parental Responsibilities
Section 40 provides that only guardians may have Parental Responsibilities. Parental Responsibilities are generally shared by each guardian. Court orders or agreements may divide up the Parental Responsibilities between guardians, or may grant sole Parental Responsibilities to one guardian.
Section 43 provides that Parental Responsibilities must be exercised in the best interests of the child. If a guardian is temporarily unable to exercise any of the Parental Responsibilities, the child’s guardian, in writing, may authorize a person to exercise one or more of those responsibilities while the guardian is unable to do so.
Section 39 provides that parents who live together with a child are each guardians. However, a parent who has never resided with his or her child is not the child’s guardian unless: (1) the parent was involved in an agreement with those involved in assisted reproduction; (2) there is an agreement with all of the child’s guardians that the parent is also a guardian (and if the child is over 12, with that child’s consent); or (3) the parent regularly cares for the child.
Step parents do not become guardians merely by marrying or entering a marriage-like relationship with a guardian, pursuant to section 39(4). For a step parent to be a guardian, as mentioned above, there would have to be an agreement with the other guardians or the step parent regularly cares for the child.
Applications for Guardianship
There is no limit to how many guardians a child may have. Anyone may apply to be a child’s guardian under section 51 of the Family Law Act. Upon application under section 51, the applicant must provide the court with an affidavit with respect to how the appointment will be in the best interests of the child.
The affidavit is made pursuant to Supreme Court Family Rule 15-2.1 or Provincial Court (Family) Rule 18.1, with three attachments: 1. a Ministry of Children and Family Development child protection record check; 2. a Protection Order Registry Check; and 3. a Criminal Record check. Before proceeding with an affidavit under s. 51, be sure to note the strict time frame requirements involved. In Supreme Court, pursuant to Supreme Court Family Rule 15-2.1(4), a s. 51 affidavit must not be made more than 28 days before the date set for a hearing, or more than 7 days before the filing of an application without a hearing. The attachments to the affidavits must not be made more than 60 days before a hearing, and the attachments must not be made more than 60 days before the filing an application without a hearing. In Provincial Court, pursuant to Provincial Court (Family) Rule 18.1(4)(b), the s. 51 affidavit must not be made more than 7 days before the date on which the materials in support of the affidavit are filed. The attachments to the affidavit must not be made more than 60 days before the materials in support of the affidavit are filed.
The affidavit required for Supreme Court may be found at form F101 here. The affidavit required for Provincial Court may be found at form 34 here. In addition to the required affidavit, the applicant must attach (1) a copy of a British Columbia Ministry of Children and Family Development child protection record check (submit this form at the courthouse registry before completing your affidavit. Return to the registry to check if it is complete before attaching this to your affidavit); (2) a copy of a Protection Order Registry check, for for Supreme Court found at form PFA914 here, and Provincial Court found at form pfa914 here (submit this form at the courthouse registry before completing your affidavit. Return to the registry to check if it is complete before attaching this to your affidavit); and (3) a copy of a criminal records check, also known as a police information check and a vulnerable section check (PIC-VS), from a local police detachment, RCMP detachment locations are found here, and VPD forms can be found here. Once all three checks are complete, attach them to your affidavit and have your affidavit sworn with a lawyer or at the courthouse registry.
Termination of Guardianship
Pursuant to section 51(1)(b) on application, a court may terminate a person’s guardianship of a child. Case law has held that termination can only occur in the most extreme situations. First, a court may ask whether through an allocation of parental responsibilities it continues to be in the bests interests of the child that the parent remain a guardian. If it is, guardianship should not be terminated. It must be remembered that once a parent is no longer a guardian, that parent loses all parental responsibilities and is simply an adult who may have contact with the child. (see D. v. D., 2013 BCPC 135 at paras. 23-24.)
For unmarried spouses, custody over children no longer exists under the Family Law Act and it has been replaced with Guardianship and an allocation of Parental Responsibilities, as described above. For married spouses however, custody is a term that is used in section 16 of the Divorce Act. Custody describes a legal relationship between a guardian and a child that generally includes care and decision making over the day-to-day routine of the child. Custody can be sole and held by one spouse or be joint between spouses.
Custodial spouses usually have duties to maximize contact of the child with the other spouse. For the purpose of deciding which spouse should have custody, a court must consider the best interests of the child and consider the willingness of a spouse to provide contact with the child to the other spouse. Custody for married spouses is in addition to guardianship and does not replace guardianship. It may be easier for spouses to put less emphasis on who has custody and focus on the allocation of Parental Responsibilities between guardians, as outlined above and in section 41 of the Family Law Act.