Allocation of parenting arrangements

Sections 39 through 49 of the Family Law Act deals with the allocation of parenting arrangements.

The terms “custody” and “access” have been replaced by “guardianship” and “parenting time” respectively.

The term guardian is not defined in the Family Law Act and as such, one may be forced to look to the common law to determine who is a guardian or not.

As per the Family Law Act, a guardian may include the child’s parents.

Section 39(1) states that when a child’s parents are living together and after the separation of the parents, each parent of the child is a child’s guardian.

Section 39(2) states that following a separation or when the parents are about to separate, one parent may not be a guardian by way of an agreement or court order.

Section 39(3) states that if one parent has not resided with a child, that parent is not a guardian unless they meet three exceptions: parentage is determined by reference to section 30 of the Family Law Act; by agreement; or the parent regularly cares for the child.

Section 39(4) states, in essence, that a person does not become a guardian of a child from a previous relationship.

Explanation from the Ministry of Justice

Section 39 carries over s. 29 of the Family Relations Act with some important changes.

A guardian is legally responsible for their child’s care and upbringing. This section establishes the starting position that parents who live with their child are guardians. This is different from the general rule under the Family Relations Act, which provides that when parents separate, the parent with whom the child usually resided has, by operation of law, sole custody and guardianship of the person of the child.

The change emphasizes that a parent’s responsibility towards their child does not change only because the parents have separated. If the parent was a guardian before separation, the parent remains a guardian after separation, unless the parents make an agreement, or the court orders that the parent is not a guardian of the child. 

This section clarifies that a parent who has never lived with a child is not that child’s guardian. There are three exceptions:

where the parent is an additional parent under s. 30 of the Act, which allows for three parents in limited assisted reproduction circumstances. This is important because these three parents may never have had the intention to live together but all intended to be the child’s parents and guardians; 

where the person is a parent, they may become a guardian by agreement. This is the only circumstance in which a person may become a guardian by agreement under the Act; and

where a parent regularly cares for their child but does not live with the child. This may occur where a child is born in a short relationship where the parents did not live together, but both parents have been involved in the child’s life.

If there is only one parent who has lived with the child, that child will have only the one guardian, unless the other parent meets one of the exceptions.

Although in many cases both parents will be guardians, this is not intended to mean “joint guardianship”, which under the Family Relations Act tended to reflect a requirement to act in concert with the other parent at all times. Rather, each parent is a guardian and continues to have the same authority they had prior to the separation, and each parent has their parenting responsibilities, which may be shared or exercised separately.

In some cases, it may not be appropriate for a parent to remain a guardian. A parent can be removed as guardian by agreement or court order. If a parent is not a guardian, they can still have time with the child—contact—but will not have any parental responsibilities.

This section also clarifies that a stepparent does not become a guardian by virtue of the marriage or marriage-like relationship with a child’s guardian. 

Commentary

Division 2 includes changes to the terms used to describe individuals who are responsible for children and to describe the time spent with children. The terminology used has been generally adopted from Alberta’s Family Law Act. 

There is a movement away from emotionally charged terms such as “custody” and “access”. Those terms have been replaced with “guardianship” and “parenting time”. In the context of the FLA, “guardianship” refers generally to the responsibility for children while “parenting time” describes the specific responsibilities that guardians have. Guardianship of the person and of the estate of the child, which appear in the FRA, have not been included in the FLA.

Section 39 carries forward ss. 27, 28(1), 29(4), and 34 of the FRA and provides that parents who live with their child remain guardians following a separation. This differs from the FRA where, following a separation, the parent with whom the child usually resides has sole custody and guardianship of the person of the child. Under the FLA, a parent who was a guardian before separation remains a guardian after separation, unless there is an agreement or court order that the parent is not a guardian of the child. As such, it is possible for a parent to lose guardianship status by agreement or court order.

Section 39 states that a parent who has never lived with a child is not that child’s guardian unless one of three exceptions applies. The first exception is a parent under s. 30 of the FLA which allows for additional parents in limited assisted reproductive circumstances. This addresses situations where there may have been the intention for three individuals to be the child’s parents and guardians, but it was not intended that they would all live together. The second exception is where a parent who has not lived with the child makes an agreement with the child’s guardian providing that the parent is a guardian. This is the only circumstance where a person may become a guardian by agreement under the FLA. The final exception is where a parent regularly cares for their child but does not live with the child. This may occur in instances where there was a short relationship and, while the parents never lived together, both were involved in the child’s life.

Section 39 also carries over s. 29(4) of the FRA to clarify that a stepparent does not become a guardian by virtue of marriage or a marriage-like relationship with the child’s guardian.