The basic nuts and bolts of the issue are these.
1. We have a federal law, the Divorce Act, which talks about the care of children in terms of custody and access. We have a new provincial law, the Family Law Act, which talks about the care of children in terms of guardians who have parental responsibilities and parenting time, and people who are not guardians and have contact with a child.
2. Under the Constitution Act, 1867, the different aspects of running a country are divvied up between the federal government and the provincial governments. This lets the federal government take charge of the army and the mail service, for example, while the provincial governments get to make rules about hospitals, bars and woodlots. From a family law point of view, the important things are the federal government's power to make laws about "marriage and divorce" and the provincial governments' powers to make laws about "property and civil rights" and matters of a "private nature."
3. Sometimes the powers of the federal government conflict with the powers of the provincial government. For example, the federal government has the power to make rules about "Indians, and the Lands reserved for the Indians" I'm quoting here which conflicts with the provinces' power to make rules about property. Conflicts like these are usually resolved through something called the doctrine of paramountcy, which means that if both levels of government can make rules about the same thing, the federal government wins. This is a huge generalization, but that's the gist of it.
4. Under the old Family Relations Act, the provincial rules about the care of children talked about custody, guardianship and access. This was very useful because these ideas mostly overlapped with the language used by the Divorce Act, and we wound up shoving all of the aspects involved in parenting into guardianship, leaving custody as a sort of Good Housekeeping seal of parental competence. Issues about paramountcy never really came up.
5. However, we now have a system in which, at least at first glance, the parenting provisions of the two laws are no longer compatible. If this is true, we have a real problem: we might find ourselves in a situation where there is one law for married couples wishing to divorce there's a line of cases that says that a couple are asking for a divorce, orders about children and support must also be made under the Divorce Act and another law for everyone else.
6. This would well and truly suck because the present Divorce Act is a musty retread of older legislation and doesn't deal with important issues such as relocation, the enforcement of orders about children or the mechanics of decision-making concerning children. The Family Law Act, on the other hand, has lots of progressive and useful features, such as: the presumption that cohabiting parents are both guardians of their children; the distribution of parentage and guardianship to third-parties involved in the conception of children through assisted reproduction; the enforcement of withheld or unexercised parenting time and contact; the temporary delegation of parental responsibilities to third parties; relocation where the parents do and do not have an order or agreement on parenting arrangements; a best interests of the child test that specifically requires family violence and children's views to be considered; and, the status of informal parenting arrangements established without an order or agreement. Lots of good stuff, you see, that might be lost to married parents.
I'm going to explain the underlying legal issues next, but if you want to cut to the chase, skip all of this and scroll down to the next heading. In fact, the last paragraph in this post actually summarizes the importance of the decision quite succinctly.
My Position on the Problem
Not that anyone ought to give a fig what I think, but my take on the matter is that guardianship is a much older, much larger and much more comprehensive concept than custody, and that the federal government intentionally chose to use the much newer, much smaller and much more confined concept when it drafted the first Divorce Act in 1968 and the doctrine of paramountcy should be considered with a great deal of caution before rejecting the application of the Family Law Act.
Guardianship and its sister concept, tutelage, have been a feature of our law since the time of the Roman Empire, and continue in the traditions of the English common law and the French civil law. The first English law on guardianship popped up in the Guardians in Socage Act of 1267. The next important English law on the subject was the Tenures Abolition Act of 1660, which required guardians to use the property of the children in their care for the benefit of those children rather than themselves. The next important law note the date was the 1886 Guardianship of Infants Act, which gave mothers a right of guardianship and duplicated some of the relevant bits of the Guardians in Socage Act and the Tenures Abolition Act.
These principles were all incorporated into the law of the colonies of Vancouver Island and British Columbia thanks to the proclamation of Governor Sir James Douglas in 1858, and survived until the repeal of the Family Relations Act on 18 March 2013. The powers of guardians were described at s. 25(2) of that act thusly:
Subject to this Act, a guardian of the estate of a child has all powers over the estate of a child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second, chapter 24,41 and 49 and 50 Victoria, chapter 12, section 4.
As you will have guessed, the act under Charles II is the Tenures Abolition Act and the act under Victoria is the Guardianship of Infants Act.
Here's what Sir William Blackstone had to say about the meaning of guardianship in the late 1760s:
"He may lawfully correct his child, being under age, in a reasonable manner; for this is for the benefit of his education. The consent or concurrence of the parent to the marriage of his child under age ... is absolutely necessary, for without it the contract is void. … A father has no other power over his son’s estate than as his trustee or guardian; for though he may receive the profits during the child’s minority, yet he must account for them when he comes of age. He may indeed have the benefit of his children’s labor while they live with him, and are maintained by him; but this is no more than he is entitled to from his apprentices or servants. The legal power of a father, – for a mother, as such, is entitled to no power, but only to reverence and respect; the power of a father, I say, over the person of his children ceases at the age of twentyone: for they are then enfranchised by arriving at years of discretion, or that point which the law has established, as some must necessarily be established, when the empire of the father, or other guardian, gives place to the empire of reason. Yet, till that age arrives, this empire of the father continues even after his death; for he may by his will appoint a guardian to his children."
If you got through all of that, the upshot of being a guardian is to have complete power of all of the affairs, interests and assets of the minor in your care. Here's how Madam Justice Huddart explained the modern understanding of guardianship in her excellent 1987 decision, Anson v Anson:
"... subject only to specific statutory restrictions or to limits imposed by a court, the guardian of the estate of a child has the full bundle of parental rights and duties regarding the child’s property and the guardians of the person has the full bundle of parental personal rights, including necessarily the entitlement to physical possession of the child."
Now as to custody, the first law on that subject was England's 1839 Custody of Infants Act, which allowed the civil court to make custody orders when the religious court had made an order for a judicial separation, a kind of half-divorce that left the parents legally married. With the 1857 Divorce and Matrimonial Causes Act, civil courts took control over the divorce process. Under s. 35 of that act, that the court could also make orders as "to the Custody, Maintenance, and Education of the Children of the Marriage" if it felt inclined to do so.
Remember that, at this point, laws about guardianship had been on the books in England since 1267, and that the Guardians in Socage Act and the 1660 Tenures Abolition Act continued to be of such importance that they were incorporated in the 1886 Guardianship of Infants Act. Guardianship was hardly unknown to government when it introduced the Divorce and Matrimonial Causes Act. In other words, the English Parliament, in passing the act, must be presumed to have chosen to allow the court to make orders about custody rather than guardianship.
The Divorce and Matrimonial Causes Act, by the way, also became part of the law of British Columbia in 1858. It remained the law in this province until the federal government finally legislated on divorce in 1968.
Here's how Justice Huddart explained the meaning of custody in Anson:
"The case law indicates two different meanings. In its wide meaning it is akin to guardianship of the person, That is, it includes the bundle of rights and responsibilities of a parent. In its narrow meaning it is regarded as mere physical custody or day‐to‐day control of the child.
"In both England and Canada in recent times the wide meaning has taken hold."
But that's not all of it. Under even the wider meaning of custody, custody is not guardianship; it is almost the equivalent of guardianship but still not guardianship. Justice Huddart continues:
"… custody under the Family Relations Act must be considered as being almost the equivalent of guardianship of the person. It includes the right to determine the child’s education, health care and religion, as well as physical control over the child … Essentially, the custodian has the full bundle of rights over the person of the child that are not reserved to the guardian of the person or some other person or institution by statute or by court order. ...
"There seems to be no limit other than that of the imagination of the bar and bench to the variety of orders that can be devised to ensure the best interests of children are served by the distribution of custodial rights and duties between interested adults. … Key, however, is where the residual authority lies. … The wide meaning is entrenched in federal legislation and in the case law here and elsewhere. That wide meaning of custody detracts from the significance one can attach to an order for guardianship of the person, for it leaves few sticks in the bundle."
Now remember what I said about when the laws on guardianship were developed. When both the English Parliament and Canadian Parliament decided to make a law about divorce, they decided to include rules about the smaller concept of custody rather than the more encompassing concept of guardianship. My point here is essentially this: the doctrine of paramountcy should not be applied by rote to bump the provincial Family Law Act and its discussion of the rights and duties involved in guardianship merely because the federal government has chosen to legislate on a related subject. The federal government chose the smaller concept, and when the courts must make orders about the care of children in separated families there remains room for the larger discussion available under the Family Law Act.
Thankfully, there's another way to look at the dilemma, the route taken by Mr. Justice Sewell.
Thankfully, there's another way to look at the dilemma, the route taken by Mr. Justice Sewell.
The Decision in B.D.M. v A.E.M.
In the case before Justice Sewell, the parties met abroad in 2004 and were married in 2005. The husband sponsored the wife's entry into Canada but the wheels fell off the bus in 2006 and the husband tried to revoke his sponsorship. The parties somehow reconciled and their daughter was born in 2007. They separated conclusively in 2008, which appears to be the same year that their litigation commenced.
At trial, the husband sought an order for sole custody under the Divorce Act, with limited, supervised access to the wife. The wife sought orders under the Family Relations Act that would preserve their status as the guardians of their daughter, but that the daughter mostly live with her and that she have right to determine certain parental responsibilities. (Other matters were of course on the table, but it's the judge's comments on this legal issue that I am most interested in.) Since the parties were making competing claims under the federal legislation and the provincial, the judge needed to make an initial decision about what law to apply (cites are omitted and will be throughout):
" These proceedings are brought pursuant to the Divorce Act. Therefore, I must consider whether any order with respect to parenting arrangements must be made pursuant to the Divorce Act or whether it is open to the court to make such an order pursuant to the Family Law Act. In addition, I must address the question of the impact of an order for custody under the Divorce Act on the status of both parties as guardians under the FLA."
And here's the nub of the issue, from the judge's point of view:
" The practical issue that arises from the different provisions of the Divorce Act and the FLA is that while parenting responsibilities can clearly be allocated among guardians under the FLA so that the powers exercised by a guardian may be limited, the authorities suggest that a parent to whom custody is granted cannot have his or her powers similarly limited."
Given the conflicting nature of the parties' claims, this issue cuts to the quick. After reviewing Justice Huddart's decision in Anson and the dissenting judgment in Young v Young, a 1993 case from the Supreme Court of Canada, Justice Sewell concluded that:
" ... Thus it would appear that a non-custodial parent under the Divorce Act has very limited, if any, rights to participate in decision making with respect to the children of the marriage. The corollary of this is that a parent who has joint custody cannot be denied the right to participate in decision making with respect to the children. This is reflected in the literature and authorities that suggest joint custody should be granted only when the court is satisfied there will be a high degree of cooperation between the parents."
In light of this rather black and white conclusion, the Family Law Act would clearly provide the court, and the parties, with a much more flexible range of options to address the conflict between the parties and the optimal arrangements for the care of their daughter. Which act then applies? The Divorce Act, because it is paramount federal legislation and the foundation of the husband's claim, or the Family Law Act?
The court then quoted from Madam Justice Humphries' decision in Hansen v Mantei-Hansen, one of the more important early decisions looking at the relationship of the Divorce Act and the Family Law Act, and her discussion of "how the guardianship, parenting and contact model in the FLA might render the guardianship provisions incompatible with the custody and access provisions of the Divorce Act" (important bits in bold):
" The new Act is not easily and conveniently compatible with the Divorce Act because the concept of guardianship in the new Act subsumes the concept of custody. It may become apparent that orders respecting children should no longer be sought or made under both Acts, and as the Divorce Act must be pleaded if a marriage is to be dissolved, and as the federal legislation is paramount, orders under that Act alone may become more prevalent.
" The situation in the present case, where both parents wish to have orders for joint custody and joint guardianship, means that this court does not have to deal with the question of what rights and responsibilities remain in the non-custodial parent in the face of an order for sole custody under the Divorce Act, when the non-custodial parent continues to be, by statute, a guardian under the expanded concept of guardianship in the new Act."
As a result, a number of decisions have taken the view that orders dealing with custody should be made under the Divorce Act exclusively. I don't think that Justice Humphries was suggesting quite so stark a result, and indeed Justice Sewell cites a number of cases which the provisions of the Family Law Act were applied despite the presence of claims under the Divorce Act and the paramountcy principle:
" In A.K. v. M.K., Holmes J. explained:
To the extent that there is inconsistency between the Divorce Act and the FLA, the principle of paramountcy might suggest that the Divorce Act should govern. However, in my assessment, it would respond more closely to the evidence and submissions the parties presented in the trial to apply the FLA, in this particular case." In D.Q.L. v. W.D.H., Truscott J. also applied the FLA:
In view of the fact that custody under the Divorce Act is to be given a broad meaning akin to the concept of guardianship, the concept of guardianship is now set out in the FLA, only interim orders are sought, and these are applications on competing affidavits, I decline to make any order for custody at this time as I consider that all the necessary requirements for the children on an interim basis can be covered within the principles of guardianship set out in the FLA." In S.F.S. v A.F.S., Melnick J. at trial made a divorce order and an order for joint custody ... under the Divorce Act. He then said the doctrine of paramountcy ... required him to determine the primary residence of the children according to the factors set out in ... the Divorce Act. However, he also said those factors are not 'in any meaningful way inconsistent with the factors … under the FLA'.
" In D.J.F. v. V.J.F., Abrioux J. said both the Divorce Act and the FLA apply to the issue of custody provided there is no conflict, and the FLA applies to guardianship. He found no conflict on the facts of that case.
" In M.M. v. C.J., Jenkins J. began with the following summary:
Where no operational inconsistency or incompatibility exists between the provincial and federal acts, there is discretion to use either Act. However, it is preferable to use the Divorce Act. Where an operational inconsistency exists, the doctrine of paramountcy applies and the order must be made under the Divorce Act.He then distinguished the cases applying the Divorce Act because in all of them at least one party had relied on that Act. ... As a result Jenkins J. found it unnecessary to determine the issue of paramountcy. He applied the FLA."
Back to the case at hand. Having established that (1) the Divorce Act is an all-or-nothing proposition when it comes to sole custody and parenting decisions, and that (2) the doctrine of paramountcy is not an insuperable leviathan, Justice Sewell then turned to the husband's claim:
 There is reason to be cautious about granting sole custody in this case. The [husband] in particular has attached considerable significance to the concept of custody. I have concluded that defining parental responsibility within the rubric of custody will cause further discord and strife, and will not promote the best interests of [the child]. I prefer to make an order that continues to recognize both parents as guardians with the right to be consulted on important parenting matters. While I have concluded that one parent must have final decision-making power, I think it is important that that parent attempt to consult with the other parent before making important decisions on behalf of [the child]. ... The [wife] is willing to attempt to consult with the claimant. Section 40(2) of the FLA would permit me to make such an order."
And here's the kicker and the reason, from my point of view, to celebrate this decision:
" After reviewing the authorities, I am of the view that the doctrine of paramountcy does not preclude consideration and application of the FLA in family law proceedings in which a divorce is granted.
" An overlap in legislation does not, without more, trigger paramountcy. Paramountcy only arises if a provincial law would frustrate the purpose of a federal law. In Canadian Western Bank v. Alberta, the [Supreme Court of Canada] reiterated the principles of the doctrine of federal paramountcy as follows:
69 According to the doctrine of federal paramountcy, when the operational effects of provincial legislation are incompatible with federal legislation, the federal legislation must prevail and the provincial legislation is rendered inoperative to the extent of the incompatibility. The doctrine applies not only to cases in which the provincial legislature has legislated pursuant to its ancillary power to trench on an area of federal jurisdiction, but also to situations in which the provincial legislature acts within its primary powers, and Parliament pursuant to its ancillary powers...
70 Of course, the main difficulty consists in determining the degree of incompatibility needed to trigger the application of the doctrine of federal paramountcy. ...
71 ... In Multiple Access Ltd. v. McCutcheon, the Court defined the fundamental test for determining whether there is sufficient incompatibility to trigger the application of the doctrine of federal paramountcy. ...
In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says 'yes' and the other says 'no'. ... ; compliance with one is defiance of the other.72 Thus, according to this test, the mere existence of a duplication of norms at the federal and provincial levels does not in itself constitute a degree of incompatibility capable of triggering the application of the doctrine. Moreover, a provincial law may in principle add requirements that supplement the requirements of federal legislation. In both cases, the laws can apply concurrently, and citizens can comply with either of them without violating the other. ...
74 ... The fact that Parliament has legislated in respect of a matter does not lead to the presumption that in so doing it intended to rule out any possible provincial action in respect of that subject. ...
75 ... the courts must never lose sight of the fundamental rule of constitutional interpretation that, '[w]hen a federal statute can be properly interpreted so as not to interfere with a provincial statute, such an interpretation is to be applied in preference to another applicable construction which would bring about a conflict between the two statutes'. To sum up, the onus is on the party relying on the doctrine of federal paramountcy to demonstrate that the federal and provincial laws are in fact incompatible by establishing either that it is impossible to comply with both laws or that to apply the provincial law would frustrate the purpose of the federal law." I can see nothing in the FLA that would frustrate the purpose of s. 16 of the Divorce Act. The underlying purpose of the relevant provisions of the Divorce Act and FLA are identical. Both statutes require the Court to consider the best interests of the child in determining parenting responsibility."
And there you have it. The provincial Family Law Act can complement the federal Divorce Act and add additional rules to its requirements. The Divorce Act must be interpreted, where possible, in a manner that does not interfere with the Family Law Act. To oust the application of the Family Law Act, a party must establish that it is impossible to comply with both the Divorce Act and the Family Law Act.
My thanks to Anna Laing, Agnes Huang and James Cudmore for bringing this important case to my attention.