03 May 2013

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.

6 comments:

  1. When someone has gaurdianship (according to the bc family law), and the other parent is applying for sole gaurdianship (to take the child away from parent who has sole gaurdianship) does the parent who has gaurdianship already need to prove that they are a good parent? (With character affidavits from others) or will the parent applying for gaurdianship just need to prove they would make a good parent....I realize the gaurdianship of the sole gaurDian wont be removed(this is something the parent applying does not realize) however if the parent applying asks for % 50 will the sole gaurdian have to prove they are a good parent in order to prevent this from happing? (Applying gaurdian has had little to do with child, and lives 8 hours away from child and sole gaurdian. Applying gaurdian plans to visit 6 times per year)

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    1. I'm not exactly sure what you're asking, but all decisions about children under the Family Law Act are made based on what is in the best interest of the child affected. That includes the strength of the child's relationship with someone, the history of the child's care, the ability of someone to care for the child affected and so on. The factors the court is required to consider are listed at s. 37 of the new act.

      You should get proper legal advice on this issues from a family law lawyer in your neighbourhood. The Lawyer Referral Service will hook you up with a lawyer for 30 minutes for $25, and the Access Pro Bono program may have a free legal clinic near you.

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  2. Can you ask for an interm decleratory order for sole gaurdianship? I am concerned father who does not have gaurdianship will attempt to take child from daycare, as daycare has policy that either biological parent with proof of dna can take child. Currently I am in a heated gaurdianship battle with father who has mental health issues.

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    1. It seems to me that the court would be reluctant to make an interim order removing someone's status as a guardian. It would probably be easier to ask the court for a restraining order.

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  3. If a parent is not a guardian according to the BC family law (never resided with child, does not regularly care for the child) and they decide to complete a special affidavit for a guardianship application, in order to apply, something has had to have changed and the parent has regular significant contact right? or maybe the child has began to live with the non-guardian parent? I do not understand what grounds a parent must have in order to apply as a guardian, if it was previously ordered in a judges ruling that the parent was NOT a guardian.

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    1. If a parent isn't a guardian, he or she must apply to be appointed as a guardian of the child and must complete the special affidavit the rules of court require. There are no special rules about what the parent has to show to be appointed as a guardian, just that the appointment is in the best interests of the child. The factors the court has to consider in deciding whether something is in the best interests of a child are set out in ss. 37 and 38 of the new act.

      Now, it's a bit different if a judge made a decision saying that the parent is not a guardian. In a case like that, particularly if that was an application under the new act, the parent would either need to appeal the order or apply to change the order. If it's an application to change the order, in addition to the best interests test, the parent would also have to show that something significant has changed since the first order was made to justify the court reconsidering that order.

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