Our highly rated Vancouver BC Child Guardianship Lawyers explain to our BC family law clients that the concept of joint guardianship is no longer alive in BC under the new Family Law Act.
A recent BC Court of Appeal case dealt with the impact of BC child guardianship and parenting responsibilities under the new act to orders and agreements made under older legislation where sole child custody is established. The public may be surprised by the new legislation as it applies to older court orders and separation agreements. People need to also understand how and when guardians are appointed or removed under the new FAMILY LAW ACT.
In the Matter of a Male Child, [British Columbia Birth Registration No. 2004-59-020158] a mother appealed a trial judge’s order refusing her application to dispense with the natural father’s consent to allowing her new spouse to adopt their child. The court did appoint the new spouse a guardian but did not clarify what the guardianship status of the natural father was.
Here is the key summary of the case from the official BC COURT OF APPEAL WEBSITE:
The appellant and respondent are divorced. There was one child of the marriage. After separation, they executed a separation agreement granting the appellant custody of the child and the respondent reasonable access. The appellant re-married and sought an order that the child be adopted by her new spouse and the consent of the respondent be dispensed with. The appellant also sought a declaration that the respondent was not a guardian of the child. The trial judge found that it was not in the best interests of the child to dispense with the respondent’s consent, and did not resolve the issue of guardianship. The appellant submits that the trial judge erred by focusing on her conduct as opposed to the best interests of the child going forward and that the terms of the separation agreement and s. 251 of the new Family Law Act prevent the respondent from remaining a guardian.
Held: Appeal allowed in part.
The trial judge correctly applied the best interests of the child test when considering whether to dispense with consent to the adoption. The appellant’s new spouse is already a guardian of the child, so there is no serious and important reason that justifies vacating the consent of a natural parent.
The effect of the separation agreement and the former Family Relations Act was that the respondent was a joint guardian of the estate of the child. Section 251 of the Family Law Act is a transitional provision that does not detract from those substantive vested rights. However, given the conflict between these parties, it is not in the best interests of the child for the respondent to remain a guardian under the Family Law Act. The respondent remains entitled to reasonable contact and is now also entitled to receive information about important events in the child’s life from the appellants.
[52] Under the new FLA, the powers of “guardians” are discussed in the terms of “parental responsibilities” under s. 41. That section provides:
WHAT DOES VANCOUVER CHILD GUARDIANSHIP AND PARENTING RESPONSIBILITIES MEAN?
41 For the purposes of this Part, parental responsibilities with respect to a child are as follows:
(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;
WHAT HAPPENED TO THE NATURAL DAD”S CLAIMS TO BE PART OF CHILD’S LIFE?
[42] The Supreme Court has jurisdiction under s. 51 of the FLA to appoint or terminate the appointment of a person as a child’s guardian “on application”. I am satisfied that this matter was clearly raised by the parties before Madam Justice Loo, albeit in the absence of a formal application. It is unresolved at this time and, in my view, the best interests of the child and the parties require a determination of the issue of S.A.K.’s guardianship status at this time without a referral back to the Supreme Court.
Appointing and removing child guardians is complex and emotion laden, Lorne MacLean always says “children shouldn’t forfeit the love and guidance of two caring and concerned parents merely because of relationship breakdown.” Call Lorne MacLean, Q.C. at 604 602 9000.
