Custody & Guardianship
Parental responsibilities and who gets to make which decisions.
Under the Family Law Act, the focus is no longer on parental rights but on parental responsibilities — the ways guardians care for a child and the decisions they have to make.
Parental Responsibilities
The Family Law Act does not use the term custody, nor does it focus on parental rights. Instead, the focus shifts to responsibilities. Section 41 lists the 'Parental Responsibilities' of guardians: making day-to-day decisions and supervising the child; deciding where the child will reside; deciding with whom the child lives and associates; decisions about education and extracurricular activities; decisions about cultural, linguistic, religious and spiritual upbringing, including Aboriginal identity; medical and dental consent (subject to s. 17 of the Infants Act); applying for passports, licences, permits, and benefits; giving, refusing or withdrawing other consents; receiving and responding to notices; requesting records from third parties; starting, defending, or settling proceedings on the child's behalf; and 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. They are generally shared by each guardian. Court orders or agreements may divide them up between guardians, or 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, they may, in writing, authorize another person to exercise them during that time.
Guardianship
Section 39 provides that parents who live together with a child are each guardians. 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, there would have to be an agreement with the other guardians, or the step-parent would have to regularly care 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. The applicant must provide the court with an affidavit regarding how the appointment will be in the best interests of the child, made pursuant to Supreme Court Family Rule 15-2.1 or Provincial Court (Family) Rule 18.1. The affidavit requires three attachments: an MCFD child-protection record check; a Protection Order Registry check; and a criminal record check. Strict time frames apply to both the affidavit and the attachments.
Termination of Guardianship
Pursuant to section 51(1)(b), a court may terminate a person's guardianship on application. Case law holds that termination can only occur in the most extreme situations. A court may first ask whether, through an allocation of Parental Responsibilities, it continues to be in the best interests of the child that the parent remain a guardian. If it is, guardianship should not be terminated. Once a parent is no longer a guardian, they lose all Parental Responsibilities and are simply an adult who may have contact with the child. See D. v. D., 2013 BCPC 135 at paras. 23–24.
Custody — for Married Spouses
For unmarried spouses, custody over children no longer exists under the Family Law Act — it has been replaced with Guardianship and an allocation of Parental Responsibilities. For married spouses, however, 'custody' is still a term 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 (held by one spouse) or joint (shared). A custodial spouse usually has a duty to maximize contact between the child and the other spouse. Custody for married spouses is in addition to guardianship, not a replacement for it.