The Concept of Guardianship: New and Improved?

mother as the guardian holding up daughter

With the coming into force of the Family Law Act (the “Act”) on March 18, 2013, the concepts of Custody and Guardianship have been significantly affected. Prior to the introduction of the Act, upon the dissolution of a marriage involving children, the Divorce Act (“DA”) and the Family Relations Act (“FRA”) governed issues surrounding parenting arrangements. The DA, dealt with Custody while the FRA dealt with both Custody and Guardianship. Thus, an overlapping concept of Custody existed under the DA and the FRA. This concept, while somewhat empty, was largely valued by clients for the perception of power and control it implied, while guardianship was valued for the rights it provided parents to be involved in the major decisions regarding the child.

The Act completely altered the prior approach to parenting arrangements under the FRA. The first notable change in regards to the care of and time with children is that when a court makes an agreement or order, the “only” consideration of the court is the best interests of the child. This is a marked change from the FRA, under which the best interests of the child was the “paramount” consideration. Further, and more pertinent to the issue of parenting arrangements, is the elimination of the term “Custody” under the Act. Now, “Guardianship”, including parenting responsibilities, is the only parenting arrangement concept under the Act. The parenting responsibilities, as per section 41 of the Act, include day-to-day decisions affecting the child, day-to-day care, and the control and supervision of the child, to name just a few.

The determination of “Custody” and “Guardianship” under the FRA has always been a contentious issue almost always requiring litigation. Now, to determine who is a guardian, the Act includes a deeming provision. Under this provision, while a child’s parents are living together and after the child’s parents separate, each parent of the child is the child’s guardian. However, a parent who has never resided with his or her child is not the child’s guardian unless the person is a parent as per another arrangement (section 30); the parent and all of the child’s guardians make an agreement providing that the parent is also a guardian; or the parent regularly cares for the child.

While this deeming provision has the potential to result in reduced litigation surrounding the issue of Guardianship, the Act’s interaction with the DA has produced confusion within the legal community. The exclusion of the concept of “Custody” in the Act has produced uncertainty regarding the simultaneous application of the Act and the DA. In the BC Supreme Court decision of CKBM v GM, 2013 BCSC 836, the court discussed this difference in conceptual approaches. Referring to an article titled Adapting Joyce and Horn Models for Divorce Act and FLA by JP Boyd, the court expressed that Guardianship under the new act is certainly not synonymous with Guardianship under the old act. Under the old FRA, there was a legal distinction drawn between the rights included in Custody, and the rights included in Guardianship. However, that distinction has now been eliminated with the introduction of the Act. “Guardianship” is now an inclusive term under the Act, that seems to include much of the same rights that are included under the concept of “Custody” in the DA.

Thus, as the conceptual approaches to parenting arrangements under the Act and the DA are seemingly incompatible, advancing claims under both acts has been considered, as JP Boyd would say, “unwise and imprudent”. In recent decisions, when faced with claims under both the Act and the DA, the court has refrained from applying the Act and has resorted to granting Joint Custody under the DA.

This ultimately begs the question of the overall effectiveness of the introduction of the Act in regards to the care of and time with children. If the courts continue on this path of minimal application of the Act in times of uncertainty, the new Guardianship provisions will not be utilized to their full potential. It will be interesting to see how, as the determination of cases under the Act increases, the courts apply the Guardianship provisions, or whether they continue to replace their application with the familiarity associated with the DA.