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.
