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.