Cut-and-Paste Guardianship Definitions

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which will affect the law on guardianship. See my post "Family Law Act Introduced!" for more information. I have posted the Joyce and Horne models of joint guardianship, adapted for joint custody under the Divorce Act and shared parental responsibilities under the Family Law Act, to the blog of Courthouse Libraries BC.

In family law, guardianship is the right to participate in parenting a child. A guardian usually has the right to get information from, and give instructions to, a child's teachers, doctors, counsellors, coaches, dentists and so forth. A guardian usually has the right to make important life choices for a child and determine which school the child will go to, the course of the child's medical treatment, the child's religious instruction, the child's discipline, the nature of the child's diet and so on. Of course when parents have separated and they are both guardians, which, frankly, is the result more often than not, they must work together to handle these issues, and that can be difficult. Parents with joint guardianship must find a way of working together to exchange information about their children and make decisions about major events and issues in their children's lives.

Although there are a number of different ways to manage conflict between separated parents about guardianship issues, the easiest is usually to define the rights and obligations involved in joint guardianship so that each parent knows what they must and mustn't do. There are three standard models of guardianship, the Joyce model, the Charleton model and the Horn model, and I've reproduced them in this post for readers to cut-and-paste and use as you wish.

The Joyce Model

Mr. Justice Joyce created this model to provide guidance on joint guardianship where only one parent had custody, however his model is commonly used whenever parents have joint guardianship, including when parents have joint guardianship and no determination is made about custody.

The parents will have joint guardianship of the child, defined on the following terms:

1. the parents will be the joint guardians of the estate of the child;

2. in the event of the death of either parent, the surviving parent will be the sole guardian of the person of the child;

3. the parent who has the primary responsibility for the day to day care of the child will have the obligation to advise the other parent of any matters of a significant nature affecting the child;

4. the parent who has primary responsibility for the day to day care of the child will have the obligation to discuss with the other parent any significant decisions which have to be made concerning the child, including significant decisions concerning the health (except emergency decisions), education, religious instruction and general welfare of the child;

5. the parent who does not have the primary care of the child will have the obligation to discuss the foregoing issues with the other parent and both parents will have the obligation to try to reach agreement on those major decisions;

6. in the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, the parent with primary responsibility for the day to day care of the child will have the right to make such decision and the other parent will have the right, under s. 32 of the Family Relations Act, to seek a review of any decision which he or she considers contrary to the child's best interests; and,

7. each parent will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers.

Common variations of this model include: ditching the language about who has "primary care" and who doesn't; assigning one or more subjects of exclusive decision-making authority to each parent; and, revising paragraph 6 to require the parents to consult a counsellor, therapist, parenting coordinator or mediator if they cannot agree on a decision.

The Charleton Model

This model was developed by Mr. Justice Garner in a Supreme Court judgment called Charleton v. Charleton rendered in 1980.

The parents shall have joint guardianship of the child, and joint guardianship will include the following rights and powers:

1. the parents shall each have a full and active role in providing a sound moral, social, economic and educational environment for the child;

2. the parents shall consult with one another in planning the religious upbringing, educational programs, athletic and recreational activities, health care (excluding emergency health care) as well as significant changes in the social environment of the child;

3. the power and authority granted hereby shall not be exercised by either of the parents so as to frustrate or unduly affect the life of the other; and,

4. the parents shall each exert their best efforts to cooperate in future plans consistent with the best interests of the child.

The Horn Model

This model was developed by Master Horn and differs from the two previous models in that it mostly discusses the sharing of information about a child.

The parents shall have joint guardianship of the child with guardianship including the following rights:

1. to be informed of the child's medical and dental practitioners;

2. to contact the child's medical and dental practitioners and obtain the child's medical and dental records;

3. to be consulted with respect to the selection of the child's alternative caregivers, such as daycare and preschool;

4. to consult with the children's alternative caregivers and teachers;

5. to be informed of events at the child's schools or daycare so that the parent without the primary care of the child may attend;

6. to be informed of parent/teacher nights so that the parent without the primary care of the child may attend;

7. to be consulted with respect to any significant health issues relating to the child; and,

8. to be consulted with respect to any significant change in the child's social environment.

This model can also be edited to remove the language about who has "primary care" and who doesn't, and to add some detail about what the right "to be consulted" means.

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Family Law Act Commentary Available

Courthouse Libraries BC has published two articles of mine on the new Family Law Act that may be useful for those in search of additional resources and commetary on the act.

The first, "Varying orders and setting aside agreements under the FLA," is a chart of the tests prescribed by the act to change orders and set aside agreements. The applicable tests differ depending on the subject matter and whether you're talking about an order or an agreement.

The second, "Adapting Joyce and Horn Models for Divorce Act and FLA," suggests some ways that the Joyce and Horn Models of guardianship, models that were commonly used to define the rights and responsibilities involved in joint guardianship under the old Family Relations Act, might be salvaged to define joint custody under the Divorce Act and the sharing of parental responsibilities among guardians under the Family Law Act.

In addition, the page Family Law Act Basics in my new wiki, JP Boyd on Family Law, has a complete plain-language breakdown of the new act.

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Custody and Guardianship

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

At one spot in my website, I say this:

"Because of certain complicated legal principles involving things like the doctrine of paramountcy, the following combinations of custody and guardianship are available:

1. joint custody and joint guardianship;
2. sole custody and joint guardianship; and,
3. sole custody and sole guardianship.

It is not possible for the parties to have joint custody while one parent is the child's sole guardian."

My off-hand reference to "complicated legal principles" has proven unsatisfactory to many, including a lot of lawyers. Let me explain.

Custody

At one point, in 1857 to be exact, the law only talked about the children of separated parents in terms of custody and access. The first law on divorce, the English Divorce and Matrimonial Causes Act, disposed of the care and control of children in one short paragraph about custody and access... unlike today's Divorce Act and Family Relations Act, which seem to spend pages on the subject.

The Divorce and Matrimonial Causes Act was just one of the English laws that were brought into the Colony of British Columbia in 1858 by the proclamation of Governor Sir James Douglas. Since British Columbia didn't join Canada until after Confederation in 1867, British Columbia managed to keep its own Divorce and Matrimonial Causes Act on the books for another hundred years, despite the division of powers in ss. 91 and 92 of the Constitution Act which assigns the power to legislate on divorce exclusively to the federal government.

Canada received the English law as well of course, and it remains on the books today, although much amended, as the Divorce Act. The Divorce Act still only talks about custody and access.

Guardianship

British Columbia first passed a law on guardianship in the late 1880s, in the Apprentices and Minors Act. That law dealt with the obligations masters had to provide the necessities of life to the apprentices in their charge. Essentially, it talked about the parent-like rights and obligations masters had in respect of the minor children who were their apprentices.

(To be clear, guardianship had been known to the common law for hundreds of years. This was the first piece of legislation on the subject.)

If the clock was stopped here, things would've been fairly clear. Custody would mean the parental rights and obligations exercised by parents and guardianship would mean the parent-like rights and obligations exercised by people who aren't parents.
Guardianship crept into the family law arena however when the provisions of the Apprentices and Minors Act were moved into the Infants Act, which mostly had to do with children's ability to enter into binding contracts, and later into the Equal Guardianship of Infants Act. (The "equal" in the title of this last act meant that women could apply for guardianship as well as men.)

The Family Relations Act

Things got a bit confused in British Columbia when the provincial government passed the Family Relations Act in 1972. The new act bundled together a bunch of provincial legislation on different family law issues in one convenient package, repealing the provincial Divorce and Matrimonial Causes Act along the way, and stuck the rules about custody right beside the rules about guardianship. The problem, from a lawyer's perspective at least, is that the new law didn't distinguish between custody and guardianship, much less explain them, and said that "any person," not just parents, could apply for custody and guardianship.

In order to accommodate the Divorce Act, however, s. 27(4) of the Family Relations Act provides that a Divorce Act order for custody is deemed to include an order for guardianship.

The Doctrine of Paramountcy

This is a constitutional principle which says that where the federal government and a provincial government have both passed a law on the same subject, the federal government's law takes priority and the provincial law is invalid to the extent that it is inconsistent with the federal law. This comes into our discussion because both the federal government and the provincial government have passed laws about custody, although only the province has a law about guardianship.

Summary and Conclusion

The meaning of "custody" under the Divorce Act contains everything that has to do with the care and control of children following separation. This must be the case because the Divorce Act only talks about custody, and "custody" must therefore be exhaustive of parents' rights and obligations in respect of their children following separation. A Divorce Act order for custody must include whatever a Family Relations Act order about guardianship means; to put it another way, guardianship and custody under the Family Relations Act can't together mean anything more than what is meant by custody under the Divorce Act.

The provincial government might decide to divide parental rights and obligations into custody and guardianship if it wishes, but however the province chooses to divide these rights and obligations, an order for custody under the federal Divorce Act says it all... and it says it all ultimately because of the doctrine of paramountcy. The Divorce Act wins. Whatever guardianship might mean, it must be included within the Divorce Act's idea of custody.

As a result of all this, you can't have an order for joint custody along with an order that gives sole guardianship to one of those parents; joint custody must include joint guardianship, and even if it didn't, assigning sole guardianship to one parent would violate the paramountcy doctrine by allowing a provincial law, the law that talks about guardianship, to step over a federal law, the law that only talks about custody. (Things might be better if the orders were made only under the Family Relations Act since the paramountcy doctrine wouldn't be invoked, but you'd still run into the problem of guardianship's subordination within the larger concept of custody.)

I hope this clears things up a bit.

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Custody and Guardianship

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

At one spot in my website, I say this:

"Because of certain complicated legal principles involving things like the doctrine of paramountcy, the following combinations of custody and guardianship are available:

1. joint custody and joint guardianship;
2. sole custody and joint guardianship; and,
3. sole custody and sole guardianship.

It is not possible for the parties to have joint custody while one parent is the child's sole guardian."

My off-hand reference to "complicated legal principles" has proven unsatisfactory to many, including a lot of lawyers. Let me explain.

Custody

At one point, in 1857 to be exact, the law only talked about the children of separated parents in terms of custody and access. The first law on divorce, the English Divorce and Matrimonial Causes Act, disposed of the care and control of children in one short paragraph about custody and access... unlike today's Divorce Act and Family Relations Act, which seem to spend pages on the subject.

The Divorce and Matrimonial Causes Act was just one of the English laws that were brought into the Colony of British Columbia in 1858 by the proclamation of Governor Sir James Douglas. Since British Columbia didn't join Canada until after Confederation in 1867, British Columbia managed to keep its own Divorce and Matrimonial Causes Act on the books for another hundred years, despite the division of powers in ss. 91 and 92 of the Constitution Act which assigns the power to legislate on divorce exclusively to the federal government.

Canada received the English law as well of course, and it remains on the books today, although much amended, as the Divorce Act. The Divorce Act still only talks about custody and access.

Guardianship

British Columbia first passed a law on guardianship in the late 1880s, in the Apprentices and Minors Act. That law dealt with the obligations masters had to provide the necessities of life to the apprentices in their charge. Essentially, it talked about the parent-like rights and obligations masters had in respect of the minor children who were their apprentices.

(To be clear, guardianship had been known to the common law for hundreds of years. This was the first piece of legislation on the subject.)

If the clock was stopped here, things would've been fairly clear. Custody would mean the parental rights and obligations exercised by parents and guardianship would mean the parent-like rights and obligations exercised by people who aren't parents.

Guardianship crept into the family law arena however when the provisions of the Apprentices and Minors Act were moved into the Infants Act, which mostly had to do with children's ability to enter into binding contracts, and later into the Equal Guardianship of Infants Act. (The "equal" in the title of this last act meant that women could apply for guardianship as well as men.)

The Family Relations Act

Things got a bit confused in British Columbia when the provincial government passed the Family Relations Act in 1972. The new act bundled together a bunch of provincial legislation on different family law issues in one convenient package, repealing the provincial Divorce and Matrimonial Causes Act along the way, and stuck the rules about custody right beside the rules about guardianship. The problem, from a lawyer's perspective at least, is that the new law didn't distinguish between custody and guardianship, much less explain them, and said that "any person," not just parents, could apply for custody and guardianship.

In order to accommodate the Divorce Act, however, s. 27(4) of the Family Relations Act provides that a Divorce Act order for custody is deemed to include an order for guardianship.

The Doctrine of Paramountcy

This is a constitutional principle which says that where the federal government and a provincial government have both passed a law on the same subject, the federal government's law takes priority and the provincial law is invalid to the extent that it is inconsistent with the federal law. This comes into our discussion because both the federal government and the provincial government have passed laws about custody, although only the province has a law about guardianship.

Summary and Conclusion

The meaning of "custody" under the Divorce Act contains everything that has to do with the care and control of children following separation. This must be the case because the Divorce Act only talks about custody, and "custody" must therefore be exhaustive of parents' rights and obligations in respect of their children following separation. A Divorce Act order for custody must include whatever a Family Relations Act order about guardianship means; to put it another way, guardianship and custody under the Family Relations Act can't together mean anything more than what is meant by custody under the Divorce Act.

The provincial government might decide to divide parental rights and obligations into custody and guardianship if it wishes, but however the province chooses to divide these rights and obligations, an order for custody under the federal Divorce Act says it all... and it says it all ultimately because of the doctrine of paramountcy. The Divorce Act wins. Whatever guardianship might mean, it must be included within the Divorce Act's idea of custody.

As a result of all this, you can't have an order for joint custody along with an order that gives sole guardianship to one of those parents; joint custody must include joint guardianship, and even if it didn't, assigning sole guardianship to one parent would violate the paramountcy doctrine by allowing a provincial law, the law that talks about guardianship, to step over a federal law, the law that only talks about custody. (Things might be better if the orders were made only under the Family Relations Act since the paramountcy doctrine wouldn't be invoked, but you'd still run into the problem of guardianship's subordination within the larger concept of custody.)

I hope this clears things up a bit.

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What Custody and Guardianship Really Mean

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

It's difficult to tell the difference between the rights and duties custody involves from the rights and duties associated with guardianship. This confusion is aggravated because the Divorce Act only talks about custody, but the Family Relations Act talks about both custody and guardianship, and because we get a lot of misleading information about these issues from American media. The explanation, however, involves a history lesson.

The first law on divorce was the UK Divorce and Matrimonial Causes Act, passed in 1857, which became part of the laws of British Columbia as a result of the proclamation of governor Sir James Douglas on 19 November 1858. The Divorce and Matrimonial Causes Act disposed of the whole issue about children in one sentence, which gave the court the authority to make an order about custody at the time it was making an order about divorce, if it thought the custody order was appropriate.

So far, we're still talking about a concept everyone will understand. Custody, within the meaning of the first Divorce Act, describes the right of a parent to direct his or her child's life and make decisions about education, health care, moral instruction, sports activities and so forth, as well as the duty of a parent to provide his or her child with the necessities of life and an education.

Guardianship was first discussed in legislation in British Columbia's Apprentices and Minors Act, passed at some point in the late 1880s. This law discussed the duty of masters to provide the apprenticed children in their care with the necessities of life and an education, and the right of masters to benefit from the child's labour and make decisions about the child's education, health care and so on. Later on, these basic provisions about guardianship were moved into the Infants Act and, by 1930, into the Equal Guardianship of Infants Act.

Guardianship under these laws concerns the rights and duties people have in respect of the children who are in their care. These rights and duties are exactly the rights and duties that parents have, the difference is that these rights and duties are being exercised by someone who isn't a parent. In other words, guardianship is about the parental rights and duties exercised by non-parents.

So far, this still makes a lot of sense, especially when you think about the sort of people who might be guardians today: the person you might ask to care for your children in the event of your death, or the people with whom children are placed when they have been seized from their parents by the government.

Problems started cropping up in 1978 when the provincial government decided to dump all of the laws about separated families into a single piece of legislation, the Family Relations Act. In this new law, custody and guardianship were discussed side by side, and the law now said that "any person" - not just parents - could apply for custody, and that "any person" - not just non-parents - could apply for guardianship. Since parents could now apply for both custody and guardianship parents did apply for both custody and guardianship, and it became difficult to differentiate between the rights and duties included in "custody" and the rights and duties included in "guardianship."

The best that could be said was that "guardianship" now contained the nuts and bolts of parenting: the right to say where the child went to school, the right to direct the course of the child's medical treatment, the right to say where the child would live, the right to say what the child would wear to school and the right to get information from the child's doctors, teachers and coaches. "Custody" suggested a bundle of rights sort of like ownership, in the sense of having the home where the child lived most often.

Things got even worse as time went on, however, because the courts began to award joint custody without requiring parents to share their children's time equally or even near-equally. I, for example, represent parents who live all over the world but have joint custody of children who live here in British Columbia. None of these parents see their children more frequently than once or twice per month, and most see their children only once or twice per year, yet they all have joint custody of their children.

As a result of this evolution in the law, there is no connection at all between the amount of time a parent has with a child and the likelihood of that parent having joint custody or sole custody of the child, or no custodial rights at all. "Joint custody" now really only means that a parent is at least an okay sort of parent, and that he or she gets along relatively well with the other parent. That's about it.

Since so much significance was now lost in the distinction between sole custody and joint custody, the courts began to award joint custody in almost all cases where both parents were good enough parents and got along well enough with each other. At the same time, the courts began to award joint guardianship more and more commonly, and joint guardianship would be awarded with even less reluctance than joint custody... as long as both parents were involved in the child's life and were capable of maintaining the bare amount of communications necessary to discuss things from time to time.

To summarize, sole custody versus joint custody doesn't mean very much any more. In fact, custody doesn't mean much at all compared to guardianship; guardianship is what's most important because guardianship is all about the practical parenting and raising of a child. As well, sole custody doesn't give a parent any more authority than the other parent, as long as the parents have joint guardianship, and joint guardianship is now the rule rather than the exception.

For a longer and more detailed discussion, go to www.bcfamilylawresource.com.

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Court Deals with Difficult Issue of Interim Orders for Access

In the recently released Provincial Court case of J.C.P v. J.B., the court addressed one of the most challenging problems arising from the transition from the Family Relations Act to the Family Law Act: what do you do when an interim order gives someone access without addressing custody or guardianship? The problem comes from s. 251 of the Family Law Act, which says this:

(1) If an agreement or order, made before the coming into force of this section, provides a party with

(a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities and parenting time with respect to the child under this Act, or 

(b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act.

(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are as described in the agreement or order respecting custody, guardianship and access.

The purpose of this section is to help people apply orders and agreements made under the old act using the language and concepts required by the new act. In a nutshell, if you have custody or guardianship or both as a result of an agreement or order made under the old act, you are a guardian under the new act and have parental responsibilities and parenting time. If you have neither custody nor guardianship, you are not a guardian and have contact with a child. 

This section is very important because if you only have contact, you're not the guardian of a child and you don't have the right to participate in making decisions about how your child is raised, such as about where the child goes to school, how the child is cared for when sick, which activities the child participates in, where the child lives and with whom the child associates, and, most importantly, whether the child moves out of town or not. Ouch.

However, it often happened that when a court proceeding started, the court would only make orders about access under the Family Relations Act, and not deal with the sticky, sometimes explosive, issues of custody or guardianship. A simple interim order for access alone might be made:

• where the children had been withheld and the other parent's most immediate goal was simply to start seeing the kids again;
• where the conflict between the parties would be ignited by an argument on the flashpoint issues of custody and guardianship; or,
• where there's not enough evidence in front of the judge to allow him or her to make an informed decision of the issue.

That made lots of sense under the Family Relations Act. However, under the Family Law Act, a plain reading of s. 251(1)(b) would say that the only order made was for access, and therefore the parent with access was not a guardian and therefore not entitled to parental responsibilities or parenting time. This would have been a horrible result, as it would, in many cases, deprive someone who would normally be a guardian of an incredibly important role in a child's life, all because of the very expedient approach that was normally taken under the old law.

This problem is precisely what Judge Merrick was required to address in J.C.P. v. J.B. The father had obtained an order for interim access alone under the Family Relations Act, and when the matter came back before the court under the Family Law Act, the lawyer for the mother took the position that the father wasn't a guardian as a result of s. 251(1)(b). The father, quite reasonably, said that as he'd lived with the mother after the child's birth, he was a guardian because of the presumptions set out in s. 39 of the act — that's the part that says that the parents of a child are the guardians of a child while they are living together and after they separate.

However, Judge Merrick began his analysis not with s. 251 of the Family Law Act but with ss. 35 and 36 of the Interpretation Act — these are the parts that talk about how rights and entitlements under old laws are to be interpreted and applied under new laws. As a result, what became important was whether the father had any rights other than access under the old law. Here is how Judge Merrick solved the riddle, with the important bits in bold:

[9] The question, in my view, is before the repeal of the Family Relations Act, did [the father] Mr. P. have a substantive right; that is, did he have any guardianship rights with respect to the person of [the child] S.? If he did, was the right vested and, if it was, does the Family Law Act manifest an intention, either expressly or by implication, to take that right away? 

[10] There is no issue that for at least the last year, [the mother] Ms. B. has had the usual care and control of S. and, therefore, she was the sole guardian of the person of S., unless the court ordered otherwise. See s. 27 of the Family Relations Act. 

[11] I have concluded that my order of September 25, 2012, paragraph 4, that provides, "Both parties shall advise the other party promptly of any medical, alternative medical, or dental appointments or treatments of the child" vested limited guardianship rights to Mr. P. 

[12] Counsel for Ms. B. submitted that since the orders made so far only granted Mr. P. access and not custody or guardianship, pursuant to the provisions of s. 251, Mr. P. is not a guardian and he only has contact with S. 

[13] Read literally, s. 251 would seem to suggest that. 

[14] However, the court in this case so far has not ruled on the issues of custody and guardianship, except to the extent that limited guardianship rights were granted to Mr. P. in the September 25, 2012, order. To be clear, there has not been an interim hearing to decide issues of custody and guardianship. 

[15] Applying a purposive approach to the legislation, I am of the view that the purpose of s. 251 of the Family Law Act, as stated earlier, is really to translate terms from the old legislation to the new legislation. I have concluded it is not to be used to determine issues previously not adjudicated upon that are in issue. 

[16] Accordingly, given my determination that Mr. P. had been granted limited guardianship rights in the order of September 25, 2012, and my determination of the meaning of s. 251 of the Family Law Act, I have concluded that for the purposes of the Family Law Act, Mr. P. is a guardian of S.

I am very glad to and have this important decision on the books, in particular, the court's reading of s. 251 as translating old orders rather than determining claims that had never been before the court and therefore never been considered by a judge.

My thanks to my colleague, the most excellent Edna Ritchie, for bringing this case to my attention.

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The Crawford Model of Shared Parental Responsibilities

In a recently-released decision, Mr. Justice Crawford of the Supreme Court appears to have crafted the first model guardianship order under the new Family Law Act. In the case of G.P. v. M.J.R.P., a rather toxic case featuring a mother described as "an outgoing, volatile, aggressive and sometimes bellicose character," the court was asked to change a Family Relations Act order which gave custody to the father and joint guardianship, on the Joyce model, to both parties.

Mr. Justice Crawford observed that both parties were now the guardians of the child as a result of the transitional provisions of the Family Law Act at s. 251, and that the new act focuses on "the parents' 'parenting'." The mother's parenting capacity having improved, but the conflict between the parties persisting, His Lordship directed an approach to parental responsibilities allocating some to the father alone and adopting a modified version of the Joyce model with respect to the others, and required the parties to use this form of order (terms specific to the parties removed):

UPON THE COURT being advised that the name and birth date of each child is as follows:

Name, born on date, and
Name, born on date 

(the "Child(ren)") 

AND UPON being satisfied that name of party and name of party are the guardians (the "Guardians") of the Child(ren) under s. 39(1)/s. 39(3) of the Family Law Act; 

THIS COURT ORDERS THAT: 

1. Party shall have primary responsibility for parental responsibility and shall terms of primary responsibility, such as a requirement to consult the other party or to advise the other party. 

2. Both Guardians may request and receive from third parties health, education or other information respecting the Children. 

3. During a Guardian’s parenting time, that Guardian may exercise the parental responsibility of making day-to-day decisions affecting the Child(ren) provided however that such Guardian must advise the other Guardian(s) of any matters of a significant nature affecting the Child(ren) occurring during his/her parenting time. 

4. Each Guardian will consult the other Guardian(s) about any important decisions that must be made in respect of the Child(ren) and will try to reach agreement concerning these important decisions. 

5. In the event the Guardians cannot reach agreement with respect to any major decision despite their best efforts, party will have final decision-making power, provided however that the other Guardian(s) may seek mediation or, under s. 49 of the Family Law Act, seek a review of any such decision if he/she believes that such decision is contrary to the best interests of the Child(ren).

To break this down somewhat, the highlights of this model are:

1. a declaration that each party is a guardian of the children;
2. an order allowing each party to obtain information about the children from third parties;
3. an order confirming the parties' right to make day-to-day decisions about the children during their parenting time, as is provided by s. 42(2) of the act;
4. an order imposing a reciprocal obligation to attempt to reach an agreement on decisions; and,
5. an order giving one party decision-making authority in the event of an impasse, while allowing the other party to right to either compel a course of mediation or apply to court for directions on the decision.

The declaration about the parties' status as guardians is particularly important as, in my view, such declarations are the only practical way to let doctors, teachers and border guards know that a particular individual is the guardian of a child when he or she is not appointed by court order.

I have provided templates for the Joyce and Horn models of guardianship adapted for joint custody under the Divorce Act and shared parental responsibilities under the Family Law Act in the blog of Courthouse Libraries BC.

My thanks to my friend and colleague Agnes Huang for letting me know about this interesting decision.

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Regulation Amended: Family Law Act Regulation adjusted for guardianship applications

In my post "Amendments Amended: Rules of Court adjusted for guardianship applications," I mentioned that the Provincial Court Family Rules and the Supreme Court Family Rules had been amended to accommodate the unpleasant requirements of s. 51(2) of the Family Law Act for persons applying for appointment as the guardian of a child. My colleague Kathleen Packard has supplied the link I was missing to the amendments that were also made to the Family Law Act Regulation.

Here's a summary of the amendments:

• Order in Council 66-2013 amends the Provincial Court Family Rules to provide a new rule, Rule 18.1, and a new form of affidavit, Form 34, for guardianship applications. 
• Order in Council 67-2013 amends the Supreme Court Family Rules to provide a new rule, Rule 15-2.1, and a new form of affidavit, Form F101, for guardianship applications.
• Order in Council 68-2013 amends the Family Law Act Regulation to provide a new form, Form 5, to apply for child protection records checks, as required by the new Provincial Court and Supreme Court rules.

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Amendments Amended: Rules of Court adjusted for guardianship applications

Two new Orders in Council have just been published implementing further amendments to the amendments previously released for the Supreme Court Family Rules and the Provincial Court Family Rules. A third order in council amends the recently released Family Law Act Regulation. The reason for these amendments stems from s. 51(2) of the Family Law Act which, as I am sure everyone by now recalls, requires that certain additional evidence concerning the best interests of the child be provided  when applications are made for the appointment of a person as the guardian of a child.

Provincial Court Family Rules

The PCFR are amended (PDF) to include a new Rule 18.1, "Guardianship Orders." The rule provides that an affidavit in Form 34 must be prepared for guardianship applications, to which must be attached a criminal records check, probably by way of a CPIC printout, as well as records checks from the Ministry for Children and Family Development and the Protection Order Registry. The affidavit required the applicant to disclose:

• his or her relationship to the children of whom guardianship is sought;
• any incidents of family violence affecting the children;
• any involvement in court proceedings under the Child, Family and Community Service Act, the Family Relations Act, the Family Law Act or the Divorce Act concerning children in the applicant's care; and,
• any history of criminal convictions and the existence of any current criminal charges.

 You can find a link to the original amendments to the PCFR in my post "Family Law Act: Changes to Rules of Court."

Supreme Court Family Rules

The SCFR are amended (PDF) to include a new Rule 15-2.1, "Guardianship Orders," to the same effect as the PCFR 18.1, with a new affidavit in Form F101.

 You can find a link to the original amendments to the SCFR in my post "Family Law Act: Changes to Rules of Court."

Family Law Act Regulation

The Family Law Act Regulation is amended to include a new Form 5, "Consent for Child Protection Record Check," to be used to obtain a record check from the Ministry for Children and Family Development.

You can find a link to the Family Law Act Regulation in PDF format in my post "Regulations to Family Law Act Published."

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