18 June 2011

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.

2 comments:

  1. To due with joint guardianship, would someone who has done this stuff get joint guardianship, held a knife to them self, threw a two month old on the bed own child,step-parent in and out of all four kids lives and the marriage, spanked the three step kids where marks where left, step-parent dislocating a toddlers arm, and cant take their medications properly with out being reminded, gets angry when a new born pulls arm pit hairs, and cant handle kids screaming, could not handle new born crying, got mad at the Mom for breastfeeding on demand feeding, calling the spouse or wife demanding, because she asked for help, gets angry when things are bought for the children and not him, gets angry to easy, and has taking the house keys and car seats and refused to give them back, has thrown a CD tower at a wall and punched the closet door, and also thrown objects like lap tops and picture frames and has punched walls and t.v.s in front of children and all this all four children have seen and threatened to do a re-enactment of his hostage situation when he had a gun held to his head by a former girlfriend, he was in the vehicle with his wife that had three months left till she gave birth.

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    Replies
    1. In British Columbia, parents who lived together with their children are each automatically guardians of their children. If you think that a person like you've described shouldn't be a guardian, you can apply for an order removing the person as a guardian. However, you really must get some proper legal advice before making such an application. If you can't afford to pay for a lawyer, you can see one for free through Access Pro Bono and, if that's not available, you can see one for $25 through the Lawyer Referral Service.

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