A person has legal guardianship when they have the legal authority (and the corresponding duties) to care for the personal and property interests of another person.
The new Family Law Act (came into force on March 18, 2013) totally does away with the word “custody” in family law matters.
The new BC Family Law Act specifically points to both parents being guardians of a child if they have ever lived together. If they separate, each of them remains a guardian.
Parents may enter into agreements or apply for a court order that would have one of the parents not be a guardian.
A person who has never resided with his or her child is not considered a guardian unless there is an agreement, the parent regularly cares for the child, or in certain scenarios where a child has been born due to assisted reproduction.
Also, if a child’s guardian and a person who is not the child’s guardian get married, or enter into a marriage like relationship, the person does not become a guardian of that child by reason only of the marriage or marriage-like relationship.
A person cannot become a child’s guardian unless they are a parent to the child, have adopted the child, or are appointed guardians under the Child, Family, and Community Service Act.
Only a guardian may exercise parenting time and parenting responsibilities of a child. Other persons may be entitled to contact with the child.
The new Family Law Act confirms that in all matters concerning legal guardianship, parenting time, and parenting responsibilities, that the best interest of the child is the only consideration. When deciding the best interest of the child, there is no assumption that that parenting responsibilities should be allocated equally among guardians, that parenting time should be shared equally, or that decisions should be made by the guardians separately or together.
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;
(l) exercising any other responsibilities reasonably necessary to nurture the child's development.
Parents often come to Hemminger Law Group wondering about what their “rights” as parents are. As you can see, the way family law is focusing with respect to legal guardianship, there is not so much concern for parental rights. What is the focus is parental responsibilities and the best interest of the child.
If you have a legal matter on this or any other topic that you would like to discuss with a lawyer, please contact us for a consultation.
Return from legal guardianship.