22 September 2015

Parents Who Separate Before Their Child's Birth: Who's a Guardian? Anyone? Anyone at All?

I had a very interesting chat with a colleague yesterday about a hypothetical situation in which a heterosexual cohabiting couple, who are about to have a baby, separate before the baby is born; our conversation centred on who could obtain standing as the unborn child's guardian before moving out. The discussion was very interesting and provided a pretty concrete illustration of a central problem with the language of the Family Law Act on who's a guardian and who isn't, and I thought I'd share what we were talking about.

First off, here are the relevant bits of s. 39:
(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian. 
(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies:
(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian; 
(c) the parent regularly cares for the child.
This section is really important. According to the provincial government's document, The Family Law Act Explained, this section means that "with few exceptions, the parents of a child who reside with the child are automatically their guardians and do not lose these responsibilities if they separate." The document continues:
  • This section establishes the starting position that parents who live with their child are guardians. This is different from the general rule under the Family Relations Act, which provided that when parents separate, the parent with whom the child usually resided has, by operation of law, sole custody and guardianship of the person of the child. 
  • The change emphasizes that a parent’s responsibility towards their child does not change only because the parents have separated. If the parent was a guardian before separation, the parent remains a guardian after separation, unless the parents make an agreement, or the court orders that the parent is not a guardian of the child.
  • This section clarifies that a parent who has never lived with a child is not that child’s guardian. There are three exceptions:
  • where the parent is an additional parent under section 30 of the Act, which allows for three parents in limited assisted reproduction circumstances. This is important because these three parents may never have had the intention to live together but did all intend to be the child’s parents and guardians;
  • where the person is a parent, they may become a guardian by agreement. This is the only circumstance in which a person may become a guardian by agreement under the Act; and 
  • where a parent regularly cares for their child but does not live with the child. This may occur where a child is born in a short relationship where the parents did not live together, but both parents have been involved in the child’s life.
What government meant to do, in other words, is create a default setting for guardianship in which parents who live with their children are the children's guardians during their relationship and after separation. However, as I've said in previous papers and commentaries, the problem with s. 39(1) is that it defines guardianship according to the parents' relationship with each other, not their relationships with their child. A plain reading of s. 39 has a number of important consequences, especially if you make the assumption that you are not a "parent," as the term is used in this section, until the child is born.

1. Parents who live together at the time of their child's birth are guardians, even if they separate hours or days later. This, I hope, is what you'd expect. It's plainly the result contemplated by the Family Law Act.

2. Parents who aren't living together when their child is born but later move in together, even months or years down the road, will be guardians.  All the act requires is that the parents live together. Nothing requires them to be living together when the child is born or within a certain period of time from the child's birth.

3. People who live together but separate before the child is born are not guardians, even if they separate hours or days before the birth. I'm assuming that you are not the parent of a child until the child is born. If that's the case then the parties did not cohabit while they were "parents" and thus aren't guardians.

4. People who live together, but never live with the child, are guardians. Cohabiting parents may not live with their child if, for example, they agree to give the child up at birth or the child protection agency apprehends the child at birth. They nonetheless would qualify as guardians under s. 39(1) as they are "parents" and are living together.

5. Parents who never lived together are not guardians, including the parent who has always been the child's primary caregiver. This is the least expected result of s. 39(1). We're comfortable, I expect, with the idea that a parent who never lived with the child isn't a guardian of the child, however s. 39(1) also catches the parent who has alway lived with and cared for the child. Nothing in s. 39 gives that parent standing as a guardian, because she never lived with the other parent and actually resides with the child, contrary to the requirements of s. 39(3). This is really the unexpected problem of s. 39(1).

I'm not aware of any case that has yet noticed this problem with s. 39(1), however it's bound to come up at some point, and the hypothetical scenario my colleague and I were discussing is exactly the sort of scenario in which the problem would be most acutely realized.

Let me recap. Mum and dad are are living together but separate before the child is born. Dad understands that the child, when born, will stay with mum, but wants to remain involved in the child's life and very much wants to have some input into making decisions about the child. As a result, it's important that he be a guardian of the child, and he'd like to find a way to guarantee this status before they separate.

We understand that dad won't be the child's guardian if he moves out before the child is born, as he and mum won't have lived together while they are "parents." This point that is underscored by the introductory line of s. 39(3) which says, clearly, that a parent who never lived with a child is not the child's guardian.

So we turn to s. 39(3)(b) which lets parents make an agreement saying that dad, who never lived with the child, is a guardian. This, of course, is assuming that such an agreement can be made before the child's birth, which frankly isn't at all clear: can someone who is not yet a "parent" make an agreement about a fetus which is not yet born and is thus not yet a "child" under s. 39(3)(b)? However, assuming that an agreement about the guardianship of an unborn child can be made, the next problem is that such agreements must be made between a "parent" and all of the child's "guardians," and even after the child's birth there will be no one qualifying as "guardian" with whom the agreement could be made.

What, then is dad to do? Or mum, for that matter? Here are some options.

1. Dad and mum could do nothing and proceed as if they are both guardians. This will work as long as the parents get along with each other. Teachers, doctors, police and the other important people likely to be involved in the child's life are likely to assume that the parents are guardians, and treat them accordingly. After all, none of these people are in a position to know whether the requirements of s. 39(1) have been met or not. However, if the relationship between the parents deteriorates, there's nothing here to protect either parent's interests. If I were dad, I wouldn't be comfortable that this would protect my right to be involved in the child's life.

2. Dad and mum could sign an agreement under s. 39(3)(b) in which they agree that dad will be a guardian of the child. This would probably also do, but only as long as everyone plays nice. If things go sideways, I doubt that the agreement would be enforceable as it wasn't made with a guardian and a key condition of s. 39(3)(b) was therefore not met. If I were dad, I wouldn't be comfortable that this would protect my right to be involved in the child's life.

3. Mum could apply to be appointed as guardians of the child under s. 51(1)(a), and dad and mum could then make an agreement under s. 39(3)(b). This will do it for sure, however: guardians can't be appointed by consent, and the court will still have to consider whether it's in the best interests of the child for the appointment to be made; mum will have to fill out the cumbersome affidavit the Rules of Court require under s. 51(2), and get the criminal records check and child protection records check the affidavit requires; and, mum will have to give notice of the application to the people listed in s. 52(1). If I were dad, I'd need to be completely confident that mum would go through with the plan to make the agreement appointing me as guardian, or I'd worry that my right to be involved in the child's life will not be protected.

4. Dad and mum could both apply to be appointed as guardians of the child under s. 51(1)(a). This will do it for sure, however: guardians can't be appointed by consent; both parents will have to fill out the special affidavit, complete the required records checks and give the required notice; and, both risk the court concluding that the proposed appointments are not in the child's interests. This is a pretty good solution, but if the relationship between the parents breaks down before the application is heard, I can imagine a pretty ugly fight ensuing about who should and shouldn't be a guardian.

5. Wait until the child is born and then "regularly care" for the child, so as to qualify as a guardian under s. 39(3)(c). This sounds pretty good, but has some serious problems. First, it's not clear what "regular care" means, and if mum doesn't agree that the care has been regular, an application to court to decide the issue will be necessary. Second, it assumes that mum isn't planning on moving sufficiently far away that "regular care" will be impossible, and it assumes that the parents will get along well enough for the dad to establish a pattern of "regular care." If I were the dad, I wouldn't necessarily be confident that mum and I would get along well enough for me to establish "regular care" of the child and that mum wouldn't contest my claim to be a guardian.

I think I may have a solution, or at least a partial solution. Section 50, the section immediately preceding the sections about the appointment of people as ordinary guardians by court order, as standby guardians and as testamentary guardians, says this:
A person cannot become a child's guardian by agreement except
(a) if the person is the child's parent,
This is an odd section, as it seems to only confirm what s. 39(3) says and that, apart from s. 39, the only way people can become guardians is if they are appointed by court order or are named as standby guardians or testamentary guardians.

Interestingly, s. 50(a) doesn't say "except if the person is the child's parent, and the agreement is made pursuant to s. 39(3)(b)," which is where the solution comes in. Under this section, the only requirement to become a guardian by agreement is that you are a parent. Although the question about whether a person is the parent of a child prior to the child's birth is left dangling, the section doesn't require that some or all of the people making the agreement be guardians, which might let the mum and dad make an agreement that, upon the birth of their child, they will both be guardians of the child, thus circumventing the hullaballoo s. 51 requires.

This might be the ideal way to solve the dilemma of establishing guardianship among non-cohabiting parents, putting aside the issues of when a person becomes a "parent" and whether people can make an agreement in anticipation of eventually qualifying as parents. It's cheap, it doesn't require an application to court, it doesn't demand the time and cost involved in getting records checks and giving notice, it avoids the risk that the court will dismiss the application, and it allows people to resolve a personal issue privately.

At some point, however, a court will be asked to resolve the tension between ss. 39(3)(b) and 50(a). The court might conclude that the the sections are contradictory and thus offer a choice of two, non-exclusive processes for the appointment of guardians. Or, the court might conclude that the sections are not contradictory and that s. 39(3)(b) serves to add the additional requirement to s. 50(a) that such agreements must involve at least one person who already has standing as the guardian of the child.

I'll leave this to someone else to figure out.