September 30, 2023

Relating to contentious parenting points, this is among the most regularly requested questions household legal professionals will obtain.  Nonetheless, this query is commonly rooted in misunderstandings about what guardianship is, who’s a guardian, and the probability of guardianship being terminated.  To be able to decide the opportunity of eradicating your ex partner as a guardian of your little one, contemplate the under.

Who’s a Guardian?

Guardianship is outlined in s. 39 of the British Columbia Family Law Act (“FLA”).  This part states that oldsters are usually guardians of youngsters after they separate in the event that they lived along with the kid.  Nonetheless, if a mum or dad has by no means resided with the kid, pursuant to part 39(3) of the FLA, they don’t seem to be a guardian except one of many following applies:

  1. the kid is the results of assisted replica as outlined in s. 30 of the FLA;
  2. there’s an settlement stating in any other case between the mum or dad and the entire little one’s guardians; or
  3. the mum or dad often cares for the kid.

In case your partner will not be the kid’s mum or dad, they don’t mechanically turn out to be a guardian of the kid upon you marrying or turning into marriage-like, as per part 39(4) of the FLA.  Thus, step-parents are usually not guardians, except there’s an settlement or order stating in any other case, although they could possess varied rights by advantage of the Divorce Act if they’re married.

Whereas dad and mom are usually guardians, that isn’t to say that solely dad and mom are guardians.  Guardians who should not dad and mom can turn out to be a guardian by settlement below the Adoption Act or the Youngster, Household and Neighborhood Service Act or by courtroom order below the Household Regulation Act, following a selected utility process.  Alternatively, the courtroom could appoint a non-parent as a baby’s guardian.  Nonetheless, if the kid is above the age of 12, this may increasingly solely be finished with the kid’s written consent except the courtroom is in any other case glad that it’s in one of the best pursuits of the kid.

Thus, when figuring out the query at hand, first be certain that your partner is a guardian inside the which means outlined within the FLA.

What’s a Guardian?

Guardians have particular privileges in the case of the kids they’re guardians of.  Solely a guardian can apply for parenting time and parenting tasks, pursuant to part 40(1).  Parenting time refers back to the time spent by a mum or dad with a baby throughout which they usually train day-to-day choices affecting the kid’s care throughout that point.  Parenting tasks refers to normal decision-making for the kid, and particularly contains important choices reminiscent of the place they’ll reside, their training, their medical care, amongst others.

This isn’t to state that solely guardians can have time with the kid.  Part 59 of the FLA states that the courtroom can order an individual who will not be a guardian to have contact with a baby.  This provision usually refers to oldsters who should not guardians, or grandparents.

What are the Bases of Terminating Guardianship?

Most frequently, there are not less than two guardians.  It isn’t a query of the courtroom awarding sole guardianship, however of taking the opposite individual’s guardianship away.

The edge for terminating guardianship may be very excessive, and sometimes rightfully so.  The courts acknowledge that it’s usually in one of the best pursuits of youngsters to foster a relationship between them and their dad and mom.  The case of M.A.G. v. P.L.M., 2014 BCSC 126 said that it is just in probably the most excessive circumstances that guardianship needs to be terminated, provided that nothing else, together with a whole and whole reallocation of parenting tasks will do.

Nonetheless, there are extenuating circumstances through which guardianship shall be terminated.  The FLA doesn’t specify the circumstances through which it’s acceptable to terminate guardianship.  Nonetheless, a assessment of BC case legislation exhibits the observe circumstances:

  • after important accidents to the kid leaving them blind and a failure to cooperate with the Ministry in growing a parenting plan (B. v. L.C., 2014 BCPC 207);
  • after no participation within the youngsters’s upbringing with a historical past of drug use, sexual impropriety and full relinquishment of parental tasks (C.S. v. W.M.M., 2017 BCPC 19);
  • the place the daddy relocated to Mexico and had nearly no contact with the kid for 9 years, and the kid clearly expressed a need to be adopted by her step-father (Lessard v. Mahoney, 2019 BCSC 551).

Remember that the Divorce Act does probably not have a separate idea of guardianship anymore, (the closest analogue was once “custody” which doesn’t exist anymore) and the Divorce Act continues to be the paramount laws.

To find out whether or not this selection is possible for you, discuss with certainly one of our household legislation specialists at YLaw.