19 August 2015

How to Send Kids Away to Go to School in British Columbia: Appointing a Guardian or Making a Temporary Authorization

The question about what to do when sending a child away to study has come up twice for me in the past month, and I thought I'd write about the problem because there seems to be some confusion about how it is handled under the new Family Law Act.

Quite often a parent will want a child to go to school somewhere in British Columbia, perhaps because the school has a special academic or sports program, but won't be able to move to live with the child. There's nothing wrong with this, of course, but parents do need to figure out how the child will be cared for, especially in case of emergencies, and how decisions about health care, schooling, extracurricular activities and so forth will be made. Most of the time, parents arrange for the child to live with a relative or friend, and trust the relative or friend to do what needs to be done and make the proper decisions at the proper time. There's nothing wrong with this either, but it does raise the legal issue of how the important people who might be involved in the child's life — teachers, principals, doctors, nurses, dentists, counsellors, therapists, coaches, police officers, border guards and the like — will know that the relative or friend has the right to not only have the child with him or her but to make decisions on the child's behalf.

Under the old Family Relations Act, parents would typically apply to have the relative or friend appointed as the child's guardian. This was relatively simply, could be done in the Provincial Court at no cost and could be arranged by a simple consent order. The order could be made for a limited period of time, or, when the need for the appointment had concluded, could be cancelled by a consent order.

Under the new Family Law Act, however, things are a bit different, largely because the act's concept of guardianship is a lot more weighty than the concept of guardianship under the Family Relations Act.

First, someone who isn't a parent cannot be appointed as the guardian of a child by consent. An application must be made to court under s. 51(1) of the act, and the court must be satisfied that it is in the child's best interests, considering the factors set out in ss. 37 and 38, that the person be appointed before the appointment can be made. Since the order is discretionary, the court may or may not make the appointment.

Second, the Rules of Court require the person whose appointment is sought to supply an affidavit providing a whole bunch of information about the children in his or her care and describe the history of any civil or criminal court proceedings that might bear on the safety of the child. The person must get a criminal records check, a protection order registry check and a check of the records of the Ministry for Children and Family Development, and attach these to the affidavit as well.

Third, s. 52(1) of the act requires that notice of the application be given to "each parent or guardian of the child affected by the application," to "each adult person with whom the child usually lives and who generally has care of the child" and to "any other person to whom the court considers it appropriate to serve with notice." 

Fourth, s. 51(4) requires that children 12 years old and older must consent to the appointment, and there's a line of cases developed under the Family Relations Act to the effect that when the consent of a child is required, consent means more than making an affidavit that says "the child agrees." Instead, the child must receive independent legal advice explaining the impact and consequences of giving consent, and the lawyer giving the advice must write an affidavit explaining that the child consents to the appointment and fully understands what the appointment entails.

Finally, when time comes to remove the person as guardian, another application must be made under s. 51 on notice to all the people listed in s. 52. An order removing a person as guardian is also discretionary, which means that the court must be satisfied that the order is in the best interests of the child and may or may not make the order as a result.

This process will indeed see a third party appointed as the child's guardian and be given the parental responsibilities necessary to care for the child, assuming the judge agrees. However, as you can imagine, this is a time-consuming, labour-intensive and potentially quite costly process, especially if it's necessary to hire counsel.

However, s. 43(2) of the new act offers a much cheaper alternative. That subsection says this:
If a guardian is temporarily unable to exercise any of the parental responsibilities described in section 41 (a), (c), (d), (f) to (j) or (l) [parental responsibilities], the child's guardian, in writing, may authorize a person to exercise, in the best interests of the child, one or more of those responsibilities on that guardian's behalf while the guardian is unable to do so.
Isn't that easier? All a guardian needs to do to appoint a third party to care for the child is write a letter. No application is necessary and you don't even need to hire a lawyer, although getting some advice from one would be a good idea. The letter doesn't require the approval of a judge and needn't be filed in court.

The catch, if you can call it that, is that the parental responsibilities a guardian can delegate to a third party are somewhat limited. It's not all of the parental responsibilities listed in s. 41, just some of them. However, these limited responsibilities are probably more than enough to let someone care for a child, make decisions about the child's schooling and health care and deal with the important authority figures in the child's life. Here are the responsibilities that can be delegated:
(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child; ... 
(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; ... 
(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; .... and 
(l) exercising any other responsibilities reasonably necessary to nurture the child's development.
That's not bad, is it? I can't see any really important issue that a person with the authorization to carry out these responsibilities would be unable to effectively address.

It's important that parents are aware of the option available under s. 43(2). It's far less cumbersome than trying to have a person appointed as guardian under s. 51(1) and requires neither an application to court nor the retainer of costly counsel. It just makes sense.

6 comments:

  1. Hi JP, question:
    1) if 1 parent, who has temporary sole custody and guardianship, makes an application that their under 19yrs child is no longer a child of the marraige, does this parent relinquish their rights to guardianship and custody? The child left the custodial parent's home and is on their own.

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    1. Interesting question... I'll give you a qualified yes, I think.

      The "child of the marriage" thing is a Divorce Act term that helps to define when someone has to pay child support, and when someone can apply for orders about custody and access. If a child has ceased to be a "child of the marriage," that terminates obligations to pay child support (which is why people usually ask for a declaration that a child is no longer a child of the marriage), and also the ability to ask for orders about custody and guardianship.

      Those rights and duties are rights and duties between parents. The thing about guardianship is that it's about rights and duties between parents and their children. A guardian doesn't have a right "against" a parent to make decisions about health care, for example, it's a duty the guardian owes to the child. I think that a Divorce Act order about whether a child is a child of the marriage may not terminate someone's duties as a guardian under the Family Law Act.

      However, the thing about duties toward a child is that they can become meaningless over time. You can force an 8 year old to eat her broccoli, but you can't force an 18 year old to eat her broccoli. Especially if she's moved out. If the parent still has a duty to make parenting decisions in respect of a child who's moved out, that duty may be unenforceable in real life, especially if the child refuses to accept those decisions.

      That was quite windy, and I'm sorry. I guess what I'm trying to say is that the issue of whether the parent has relinquished rights to guardianship and custody is somewhat meaningless. Even if those powers exist, its up to the near-adult child to allow them to impact her. The rights may exist as a matter of law, but they can't be enforced in a meaningful way. Ironically, you will find yourself in the same position. You might say "now I will exercise rights of custody and guardianship," but if the child ignores you, what does it get you?

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  2. Thank you! Not windy at all, a lot of influences. How does this affect me when I have had my my guardian and custody rights temporarily suspended as per order 're alienation. Assume the child wants to have a relationship with me.

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    1. In the Divorce Act context of just "custody" and "access", custody rights are more about parenting decisions and having or sharing the child's home. I see these rights and obligations as being different than access, which is really no more than the right to spend time with the child.

      I think that if a Parent A had an order which said "Parent B shall have interim sole custody of the child," that wouldn't prevent Parent A for asking for or exercising access. Particularly with a teenage child who's at a point where he or she could really say how much or how little time he or she will spend with a parent.

      Now, if Parent A had an order saying "Parent A will have no access to the child" or "Parent A's access to the child is suspending," I would tell Parent A to apply to change that part of the order for fear of being found in breach of that order... especially if the order was motivated by a safety concern of some kind.

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  3. S. 41 is definitely an easier way to go about things... that is if agencies actually acknowledge the letter or the act's allowances for it. School, doctors, passport Canada, etc. all have their own policies on a person's ability to exercise parental responsibilities and who they can and won't release information to.
    People may want to check in with service providers to see if they will even follow a delegation letter.

    Also what happens if another guardian disputes the delegation or the decisions made by the temporary guardian? Does that leave the original guardian having to resolve the issue or the temporary guardian?

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    1. That's an excellent point, and I can see the problem you've identified. It's the same problem about people who are presumed to be guardians. You're not supposed to need an order appointing you as a guardian if you're a guardian by definition, however it's not clear how doctors, teachers and border guards would recognize someone as a guardian.

      I wonder if the saw-off for s. 41 delegations is what I've recommended for guardians: applying for a declaration, not an order, confirming their standing as a guardian. In this case, you'd apply for a declaration that the delegate has parental responsibilities in respect of X, Y and Z issues.

      Now, if another guardian objects to the delegation, the objecting guardian would need to apply to court to either revoke the delegation or to strip delegating guardian of the parental responsibilities he or she has attempted to delegate. It wouldn't be the delegate's problem.

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