Guardianship of a child

Sections 50 through 57 of the Family Law Act deals with guardianship of a child.

Agreements respecting guardianship

50 A person cannot become a child’s guardian by agreement except

(a) if the person is the child’s parent, or

(b) as provided under this Division, the Adoption Act or the Child, Family and Community Service Act.

Explanation from the Ministry of Justice

Section 50 allows for agreements respecting guardianship to be made between parents of the child. This carries forward the policy in s. 28 of the Family Relations Act.

It also allows for the transfer of guardianship through agreement under the Adoption Act or the Child, Family and Community Service Act to allow the director to transfer guardianship to the prospective parents or guardians under those Acts.

This section prevents the transfer of guardianship by agreement in all other cases. Under the Act, unless the person is a parent of the child, a court order is needed for guardianship. This is more restrictive than s. 34(2)(b) of the Family Relations Act, which did not restrict who could obtain custody under an agreement. This additional restriction was added to promote children’s safety by ensuring there is court oversight in all cases where a non-parent is seeking guardianship of a child.

Orders respecting guardianship

51 (1) On application, a court may

(a) appoint a person as a child’s guardian, or

(b) except in the case of a director who is a child’s guardian under the Adoption Act or the Child, Family and Community Service Act, terminate a person’s guardianship of a child.

(2) An applicant under subsection (1) (a) of this section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, respecting the best interests of the child as described in section 37 [best interests of child] of this Act.

(3) Subsection (2) of this section applies regardless of whether there is consent to the application under section 219 [persons may consent to order being made].

(4) If a child is 12 years of age or older, a court must not appoint a person other than a parent as the child’s guardian without the child’s written approval, unless satisfied that the appointment is in the best interests of the child.

(5) A person who has custody of a child under section 54.01 (5) or 54.1 of the Child, Family and Community Service Act is deemed, for the purposes of this Act, to be a guardian appointed under subsection (1) of this section.

Explanation from the Ministry of Justice

This section authorizes the court to make a guardianship order or to terminate a person’s guardianship. The authority to remove a guardian does not apply to removing the director’s guardianship under the Adoption Act and the Child, Family and Community Service Act. This prevents a person, after the child has been adopted or removed, from bringing an application to have the director’s guardianship terminated.

Subsection (2) provides the ability to establish rules to ensure information relevant to the best interests of the child is brought before the court, including in relation to criminal or child protection history. This section applies to all non-parents as well as to the few parents who are not guardians by default (i.e., those who have never lived with the child). This section also applies where the parties are seeking an order by consent. This responds to recommendations made by the Representative for Children and Youth.

Section 51 requires the consent of a child who is 12 years or older to the appointment of a person as the child’s guardian, unless the person seeking guardianship is a parent or the court is satisfied that the child’s best interests require the appointment.

This section addresses s. 54.1 of the Child, Family and Community Service Act which refers to a situation in which, after a continuing custody order has been made, the director grants “custody” to another person. Section 51 equates this to a grant of “guardianship” under the Family Law Act.

Section 51 carries forward ss. 30 and 35 of the Family Relations Act with respect to appointing or revoking guardianship and making custody orders. 

Commentary

Section 51 carries over ss. 30, 30.1, and 35 of the FRA, which deal with appointing and revoking guardianship and making custody orders. Section 51 provides for the appointment or termination of a guardian. Non-parents and parents who have never lived with the child may apply for guardianship under this section. The ability to remove a guardian under s. 51(1)(b) does not apply to removing a director who is a guardian under the Adoption Act or the Child, Family and Community Service Act. This prevents applications for the removal of the director as guardian after a child has been removed or adopted. 

A person applying for guardianship under s. 51 must demonstrate why the appointment is in the best interests of the child, even in cases where there is consent to the order being made. The application must be made on notice to all of the child’s guardians and adults with whom the child lives. The consent of the child age 12 and older is required, unless the applicant is a parent or the court is satisfied that the appointment is in the child’s best interests.

Who is entitled to notice

52 (1) Subject to subsections (2) and (3), if an application is made under this Division, the following persons must be served with notice of the application:

(a) each parent or guardian of the child affected by the application;

(b) each adult person with whom the child usually lives and who generally has care of the child;

(c) any other person to whom the court considers it appropriate to serve with notice.

(2) Subsection (1) does not apply to a parent of a child if any of the following apply:

(a) the parent’s guardianship was terminated by a continuing custody order under the Child, Family and Community Service Act;

(b) another person has temporary custody of the child under section 54.1 of the Child, Family and Community Service Act;

(c) another person has permanent custody of the child under section 54.01 (5) of the Child, Family and Community Service Act.

(3) The court may grant an exemption from a requirement to give notice under subsection (1) if the court considers it appropriate.

Explanation from the Ministry of Justice

This section lists those people who, subject to a court-ordered exemption, must be served with notice of an application for guardianship.

It requires that notice be given to all parents, guardians or others with whom the child resides and who have care of the child, unless the child is the subject of a continuing custody order or another person has temporary custody of the child under s. 54.1 of the Child, Family and Community Service Act or permanent custody under s. 54.01(5) of that Act.

Section 52 carries forward s. 22(1) of the Family Relations Act as well as the policy objective of s. 30.1(2) of the Family Relations Act.

Appointment of guardian in case of death

53 (1) A child’s guardian may appoint a person to be the child’s guardian on the death of the appointing guardian

(a) in a will made in accordance with the Wills, Estates and Succession Act, or

(b) in the prescribed form,

(i) signed at its end by the guardian, or the signature at the end must be acknowledged by the guardian as his or hers, in the presence of 2 or more witnesses present at the same time, and

(ii) signed by 2 or more of the witnesses in the presence of the guardian.

(2) For the purposes of subsection (1) (b),

(a) a witness may not be a person appointed to be the child’s guardian, and

(b) a reference to the signature of a guardian includes a signature made by another person in the guardian’s presence and by the guardian’s direction, and the signature may be either the guardian’s name or the name of the person signing.

(3) If a child’s guardian dies without having made an appointment under subsection (1) of this section or under section 55 (1) [appointment of standby guardian], and there is

(a) one surviving guardian who is also the child’s parent, the surviving guardian has all parental responsibilities with respect to the child, unless an order provides otherwise, or

(b) more than one surviving guardian who are also the child’s parent, each of the surviving guardians has the parental responsibilities that the deceased guardian had with respect to the child, unless an agreement or order provides otherwise.

 Explanation from the Ministry of Justice

 Section 53 provides a way for guardians to appoint a guardian to take over responsibility for their child upon their death and, if there is no such appointment, provides a default to determine who exercises the parenting responsibilities of a deceased guardian.

In addition to authorizing the use of a will, it allows a guardian to use a prescribed form to make the appointment.

The section eliminates the limitation currently in s. 50(1) of the Infants Act that allows only a “parent” of a child to appoint a testamentary guardian. Under the Act, all guardians, whether or not they are also parents, have the ability to appoint a testamentary guardian. The British Columbia Law Institute’s report recommended elimination of the distinction between parents and non-parent guardians.

The section says that if a guardian dies without appointing a guardian and there are surviving parent-guardians, those parent-guardians take all the parental responsibilities that the deceased guardian had.

Commentary 

Section 53 carries over s. 29 of the Family Relations Act. A guardian may appoint a person as guardian effective on the appointing guardian’s death. The appointment is done by will or form, to be prescribed by regulation.

If a guardian dies and there is no such appointment, s. 53 provides the mechanism for redistributing the parenting responsibilities previously held by the deceased guardian.

Loss of guardian

54 If a child’s guardian dies, a surviving parent of the child who is not a guardian of that child does not become that child’s guardian unless appointed under section 51 [orders respecting guardianship] or 53 [appointment of guardian in case of death]. 

Explanation from the Ministry of Justice

This section provides that on the death of a child’s guardian, if a surviving parent is not also a guardian he or she does not automatically become the child’s guardian and therefore does not take the parental responsibilities of the deceased guardian.

Section 54 carries over s. 29(2) of the Family Relations Act.

Commentary

The surviving parent who is not a guardian would need to make an application under s. 51 if he or she was not appointed under s. 53.

Appointment of standby guardian

55 (1) A guardian facing terminal illness or permanent mental incapacity may appoint a person to become, when the conditions set out in the appointment are met, a child’s guardian, in addition to the appointing guardian.

(2) An appointment under subsection (1)

(a) must be made in the prescribed form,

(i) signed at its end by the guardian, or the signature at the end must be acknowledged by the guardian as his or hers, in the presence of 2 or more witnesses present at the same time, and

(ii) signed by 2 or more of the witnesses in the presence of the guardian,

(b) must state the conditions that must be met for the appointment to take effect, and

(c) may provide that a designated person certify that a condition referred to in paragraph (b) has been met and that, if such a certification is made, it is conclusive.

(3) For the purposes of subsection (2) (a),

(a) a witness may not be a person appointed to be the child’s guardian, and

(b) a reference to the signature of a guardian includes a signature made by another person in the guardian’s presence and by the guardian’s direction, and the signature may be either the guardian’s name or the name of the person signing.

(4) In carrying out his or her parental responsibilities, a guardian appointed under this section must consult with the appointing guardian to the fullest possible extent regarding the care and upbringing of the child.

(5) Unless the appointing guardian, while capable, has revoked the appointment or the appointment provides otherwise, a guardian appointed under this section continues as the child’s guardian on the death of the appointing guardian despite any other instrument made by the appointing guardian.

Explanation from the Ministry of Justice

Section 55 authorizes a guardian facing a terminal illness or permanent mental incapacity to provide for the orderly transition respecting the care of their children by appointing a standby guardian. This is intended to promote certainty and stability in the care of children.

The appointment takes effect when the appointing guardian, while still alive, is unable because of the illness or mental incapacity to attend to their responsibilities. The standby guardian must consult with the appointing guardian, to the extent possible and appropriate. Upon the appointing guardian’s death, the standby guardian remains guardian of the child. 

These appointments are executed in a prescribed form in the same way as a will. The appointment must include a description of conditions on which the standby guardian takes responsibility and may include a requirement for a medical doctor or other designated person to verify that conditions have been met.

The section also deals with the possibility of a competition between appointments. The section provides that, unless the standby appointing document indicates otherwise, the standby guardian becomes the child’s guardian on the death of the appointing guardian despite any other document, such as a will, that contains a different appointment

Standby guardianship developed in the United States and a number of states have legislation surrounding its use. The British Columbia Law Institute’s report supported the use of standby guardianship.

Commentary

A guardian facing permanent incapacity, such as a terminal illness or mental incapacity, may appoint a person as guardian effective when specified conditions are met, such as the guardian’s incapacity, by a form to be prescribed by regulation. The appointment will require a description of the conditions on which the standby guardian will step in and take responsibility. Under s. 55(2)(c), the appointment may include a requirement that a medical practitioner or similar designated person verify that certain conditions have been met.

Section 55 is intended to promote certainty and stability in the care of children following incapacity of a guardian. The appointment would take effect when the appointing guardian, while still alive, is unable to attend to their responsibilities. The standby guardian must consult with the appointing guardian, to the extent possible and appropriate, during the appointment. Upon the appointing guardian’s death, the standby guardian remains guardian of the child. The death of a guardian does not vest guardianship in a parent who is not a guardian as set out in s. 54.

Section 55(5) addresses the possibility that there may be a competition between appointments. Unless the appointment documents provide otherwise or the appointment has been revoked, the standby guardian becomes the child’s guardian on the death of the appointing guardian despite any other document, such as a will, that contains a different appointment.

Limits on appointments

56 In making an appointment under section 53 [appointment of guardian in case of death] or 55 [appointment of standby guardian], the appointing guardian

(a) must consider the best interests of the child only, and

(b) may not grant greater parental responsibilities than the appointing guardian has with respect to the child.

Appointments must be accepted to take effect

57 An appointment under section 53 [appointment of guardian in case of death] or 55 [appointment of standby guardian] does not take effect unless the appointed person, either expressly or impliedly by the person’s conduct, accepts the appointment.

Contact with a child formerly access time

Sections 58 through 60 of the Family Law Act deals with contact with a child.

Agreements respecting contact

58 (1) A child’s guardian and a person who is not a child’s guardian may make an agreement respecting contact with a child, including describing the terms and form of contact.

(2) An agreement respecting contact with a child is binding only if the agreement is made between all of a child’s guardians having parental responsibility for making decisions respecting with whom the child may associate.

(3) A written agreement respecting contact with a child that is filed in the court is enforceable under this Act as if it were an order of the court.

(4) On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting contact with a child if satisfied that the agreement is not in the best interests of the child.

Explanation from the Ministry of Justice

Section 58 sets out the specific rules about agreements between guardians and non-guardians respecting contact with a child to encourage parties to use written agreements to manage their affairs.

It requires that an agreement with respect to contact must be made with all of the guardians who have parental responsibility under s. 41(c) of the Act for making decisions about who the child may associate with.

An agreement respecting contact with a child may be filed in the court registry, so that it may be treated and enforced like a court order. This streamlines the enforcement of agreements.

The section provides a safeguard in that if an agreement respecting contact is not in the best interests of the child, it must be set aside and replaced by an appropriate court order.

Section 58 carries over the policy of ss. 121(2)(a) and 122(1)(a) of the Family Relations Act.

Commentary 

Section 58 carries forward ss. 121(2) and 122(1) of the FRA, allowing agreements to be filed, and replaces the concept of access with contact. Contact refers to time with a child by a non-guardian and is not included in the term “parenting arrangements”, which applies only to guardians.

Section 58 sets out the specific rules about agreements between guardians and non-guardians respecting contact. Agreements with respect to contact must be made with all of the guardians who have parental responsibility under s. 41(c) of the FLA for making decisions about who the child may associate with. This prevents a guardian from making an agreement with a non-guardian, who is likely to be a non parent, for contact without the consent of other guardians or a court order. A likely class of individuals seeking such an agreement or order is extended family members, who may not have a positive relationship with all of the guardians.

As always, the agreement must be in the best interests of the child or the court has the authority to set it aside and replaced by an appropriate order.

Orders respecting contact

59 (1) On application, a court may make an order respecting contact with a child, including describing the terms and form of contact.

(2) A court may grant contact to any person who is not a guardian, including, without limiting the meaning of “person” in any other provision of this Act or a regulation made under it, to a parent or grandparent.

(3) The court may make an order to require the parties to transfer the child under the supervision of, or require contact with the child to be supervised by, another person named in the order if the court is satisfied that supervision is in the best interests of the child.

(4) An access order referred to in section 54.2 (2.1) or (3) of the Child, Family and Community Service Act is deemed, for the purposes of this Act, to be an order made under subsection (1) of this section for contact with a child.

Explanation from the Ministry of Justice

This section authorizes a court to make orders for contact including the type of contact and terms associated with it. For example, contact might take the form of time with the child or telephone or written contact. 

It clarifies that non-guardian parents and grandparents may apply for contact. The inclusion of grandparents in this section does not prevent grandparents from applying for orders for guardianship, parenting arrangements, or parenting time in appropriate circumstances.

The section authorizes orders for supervised contact, if appropriate.

It provides that an “access” order made under the Child, Family and Community Service Act is a “contact” order for the purposes of the FLA.

Section 59 carries forward and clarifies s. 35 of the Family Relations Act.

Commentary

Section 59 carries forward and clarifies s. 35 of the FRA, which provides the jurisdiction to make custody or access orders. It authorizes the court to make orders for contact as well as any associated terms, such as supervision.