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.

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.

Extraordinary Court of Appeal Decision: Rights of Guardianship May Survive Agreement for Sole Custody

The British Columbia Court of Appeal has released its decision in Re British Columbia Birth Registration No. 2004-59-020158, a fascinating case that has some very important implications for orders and agreements for sole custody made before the new Family Law Act came into effect on 18 March 2013. As usual, understanding the important point this case makes requires a bit of an explanation, however let me start with the facts.

Background

In a nutshell, this case is about a mother's application for the adoption of her child by her new spouse and, because the father was none too happy with the idea, an order that the necessity of his agreement with the adoption be waived.

The mother and father separated in 2006 when their son was a year and a half old. A few months later they signed a separation agreement — this is important — giving the mother sole custody of the child and unspecified access to the father. This is what the agreement said:

CUSTODY, ACCESS AND GUARDIANSHIP 

2. [The mother] will have custody of [the child]. 

3. [The father] will have reasonable access to [the child]. 

4. If [the father] and [the mother] are at any time unable to agree on the particulars of access or on a variation of access, either may apply to a court of competent jurisdiction for directions. 

5. All terms as to custody, access and guardianship may be varied by the written consent of both Parties duly witnessed and signed as an Amendment to this Agreement.

Although the father initially saw his son almost every weekend, the frequency of his visits began to decrease after the mother started a new relationship. The mother and father divorced in 2010, and around the same time, the mother and her new partner took the child and moved out of town. The father was not told of the move and had no idea where his son was living until litigation ensued. The mother married her partner in 2011, and the couple started a law suit in the Supreme Court seeking an order that he adopt the child and a decision as to whether the father remained a guardian of the child after the parties' signed their separation agreement.

The Decision at Trial and a Parenthetical Comment on a Psychologist's Recommendation

The father, who had started a law suit in the Provincial Court for an order giving him specified access to his son, objected to the adoption application. As a result, the mother's claim went to trial, and her claim was heard together with the father's claim for access. The trial judge dismissed the mother's law suit and made an order that the father have access to the child; the trial judge decided that it was unnecessary to determine whether the father was a guardian of the child or not. The mother appealed the decision.

(I pause here to note that, at trial, a psychologist recommended that the mother's new spouse be allowed to adopt the child and that the father should have some limited access to the child. This was the psychologist's testimony:

"... in the report [I prepared] I actually make the point that perhaps there could be an agreement almost quid pro quo that if [the father] would allow the adoption, then there would be a reciprocal cooperation on the part of [the mother] to facilitate this type of arrangement to take place. ... I was hoping that — that by saying that there would be a reciprocity where [the father] would agree on adoption in exchange for [the mother] promising to — to allow and facilitate and arrangement that would allow [the child] to know [the father] and the paternal family, that — that if there was that reciprocal agreement, that it would make sense that — that — because what he wants is — meaning [the father] — what he wants is he wants to be a part of the child's life, he wants to have some input, he wants the child to know him, and he wants to know the child. But if — if in exchange for that, he gave up the ability and allowed them to adopt, then perhaps we could — you know, there might have been some — some agreement in that regard ..."

In other words, the psychologist was recommending that the father should give up his status as the child's father, and the rights that go along with that status, in exchange for contact with the child. This recommendation trespasses upon the offensive; the father had a right to seek contact with the child merely because of his status as the child's father, and he is now being asked to give up that status to obtain the access he ought to have had in any event? The Court of Appeal shared my concern:

"[31] Frankly, this notion of [the father] consenting to the adoption in consideration for future contact rights is troubling. I do not view a natural parent’s interest in consenting or not to the adoption of their child as something that should be required to be bartered away for the right to be peripherally involved in the child’s future. Yet that is what [the mother] was proposing and it is precisely what [the psychologist] was effectively recommending. ...

"[33] With respect, it is inappropriate to effectively require (or even to simply encourage) [the father] to give up his parental ties to the child as the price for gaining [the mother's] 'co-operation' in facilitating his future contact with the child, to which, prima facie, he is entitled at law."

Let me climb off my high horse and return to the main topic. I apologize for the long-winded diversion.)

The Decision on Appeal

According to the judgment of the Court of Appeal, written by the province's Chief Justice, the mother's main argument on appeal was that the trial judge effectively ignored the child's best interests by dwelling on the mother's behaviour in "isolating the child" from contact with the father. However, the main issue for the court was the not the adoption claim, which it dismissed, but the question of the father's standing as a guardian of the child, and this is where the decision gets really interesting.

First of all, remember that the parties' agreement talked about custody and access but really didn't say anything about guardianship, even though that section of their agreement was titled "Custody, Access and Guardianship" and paragraph five said "all terms as to custody, access and guardianship may be varied by the written consent of both Parties." This agreement was made when the old Family Relations Act was the law of the province. Section 27 of that act set out certain presumptions about how guardianship was to be shared during and after the parents' relationship (important bits in bold):

(1) ... whether or not married to each other and for so long as they live together, the mother and father of a child are joint guardians unless a tribunal of competent jurisdiction otherwise orders. 

(2) ... if the father and mother of a child are or have been married to each other and are living separate and apart, 

(a) they are joint guardians of the estate of the child, and

(b) the one of them who usually has care and control of the child is sole guardian of the person of the child unless a tribunal of competent jurisdiction otherwise orders.

Since the parties' agreement didn't make any decisions about guardianship, this meant, according to both the trial judge and the Court of Appeal, that the father continued to be a guardian of the estate of the child, under s. 27(2)(a). Of course, since the agreement gave custody to the mother, she had "care and control of the child" and was therefore the guardian of the person of the child under s. 27(2)(b).

(Time for another diversion. "Guardianship" of a child has always — well, at least since 1660 — had two components, guardianship of the person of the child and guardianship of the estate of the child. Someone who is the guardian of the person of a child has the right to make decisions about where the child goes to school, how health care issues are managed, about the child's language and culture, how the child is disciplined, and so on; essentially, the guardian of the person of the child decides how the child is raised. Someone who is the guardian of the estate of a child is entitled to make decisions about how the child's property is managed, in the manner of a trustee of that property.)

This leads to the question of the parties' status under the new Family Law Act. Sections 251 and 252 are the main parts of the new act that translate orders and agreements made under the old act. Section 251, which applies here, says this:

(1) If an agreement or order, made before the coming into force of this section, provides a party with

(a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities and parenting time with respect to the child under this Act, or 

(b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act.

(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are as described in the agreement or order respecting custody, guardianship and access.

The parties' agreement gave the mother custody; she is clearly a guardian of the child. The court considered the father's status by comparing the rights of a guardian of the estate of a child under the old Family Relations Act to the rights of a "guardian" under the new Family Law Act. 

This is what s. 25 of the Family Relations Act said about the rights involved in guardianship:

(2) Subject to this Act, a guardian of the estate of a child has all powers over the estate of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second, chapter 24, and 49 and 50 Victoria, chapter 27, section 4.

Frequent readers will recall that these two acts are the UK Tenures Abolition Act of 1660 and the Guardianship of Infants Act of 1887. (I talk about these acts in my post "Supreme Court Releases Important Decision on Paramountcy Problem between Divorce Act and Family Law Act" and in some of my other writing on this issue.) After considering an amendment to this part of the Family Relations Act that never came into effect, the court concluded that the rights involved in being a guardian of the estate are similar to those of a trustee:

"[50] ... Equating the guardian of the estate with a trustee of the child’s property recognizes the obligation of a guardian of the estate to protect and manage the child’s property for the benefit of the child and the right of the guardian of the estate to control the child’s property to that end."

The decisions guardians can make under the new act are "parental responsibilities," and are listed at s. 41. Of all of those parental responsibilities, the court held that the rights of a guardian of the estate of a child were most similar to those found at s-s. (k):

(k) subject to any applicable provincial legislation,

(i) starting, defending, compromising or settling any proceeding relating to the child, and 

(ii) identifying, advancing and protecting the child's legal and financial interests;

To this point, then, the Court of Appeal has reached these three conclusions:

· If you were married and have an agreement — or, by extension, an order — that gives the other parent sole custody but doesn't say anything about guardianship, you are a guardian of the estate of the child under s. 27(2)(a) of the Family Relations Act. 

· As the guardian of the estate of the child, you are a trustee of the child's property and must "protect and manage the child’s property for the benefit of the child," and you have the right "to control the child's property" for that purpose.  

· These rights and duties are the same as having the parental responsibility, under s. 41(k) of the Family Law Act, for handling legal proceedings on behalf of the child and protecting the child's financial interests.

Now we need to get back to the translation provisions of s. 251. The parties had an agreement giving the mother sole custody, but the agreement didn't decide anything about guardianship. This is what the court said about the intention of s. 251 and its effect on the rights distributed by the parties' agreement:

"[58] Section 251 is a transitional provision. It should not be lightly interpreted as taking away substantive vested rights. ...

"[59] ... did the separation agreement, properly construed, take away [the father's] then vested (under s. 27 of the FLA) right to guardianship of the estate of the child? I think not. In my view, one should interpret the separation agreement, by referring to guardianship without more, as implicitly continuing the guardianship regime then in place which afforded joint guardianship to [the mother] and [the father] of the estate of the child. Section 251 does not affect this status."

And now we can add a fourth point to the court's conclusions:

· If you are guardian of the estate of a child, as a result of an old agreement or order, you are a guardian under the Family Law Act, with the parental responsibility set out at s. 41(k), and other parental responsibilities under s-ss. (h), (i) and (j) as may be necessary for you to act under s-s. (k).

However, whether you're a guardian as a result of an old agreement or order under s. 251 or because you're one of the people who are presumed to be guardians under s. 39 of the new act, your standing can also be taken away under s. 51, which says this:

(1) On application, a court may

(a) appoint a person as a child's guardian, or 

(b) ... terminate a person's guardianship of a child.

And in this case, the the court decided it should be taken away:

"[60] In my view, it would not be in the best interests of the child in all the circumstances to grant [the father] parental rights under s. 41(h), (i), (j) and (k) of the FLA."

At the end of the day, the result from the Court of Appeal was that the mother's application for the adoption of the child by her new spouse was refused. The father's standing as a guardian was terminated — although the court didn't quite put it that way, which is curious — and the order from trial giving the father contact with the child was continued, but on terms which included requiring the mother and her spouse to keep the father informed of certain decisions they might make in respect of the child.

Conclusion

This decision is enormously important, because I expect that many formerly married parents who had agreements and orders that just talked about sole custody and access probably read s. 251 as meaning that the parent with sole custody became the child's only guardian under the Family Law Act. The Court of Appeal has made it clear that such orders do not disturb the other parent's standing under s. 27 of the Family Relations Act as a guardian of the estate of the child, and that as a result of this standing, the other parent continues as a guardian under the Family Law Act, albeit as a guardian whose only parental responsibility is that found at s. 41(k).

The effect of continuing as a guardian under the Family Law Act is profound, for the following reasons.

· Only guardians have parental responsibilities under the act. (s. 40(1)) 

· As a guardian, you have parenting time with the child, not contact. Someone with parenting time also has "the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child." (s. 42(2)) 

· Only a guardian can apply to court for "directions respecting an issue affecting the child." (s. 49) 

· Only a guardian can object to another guardian's plans to move with the child, or apply for an order that the move be prevented. (ss. 68, 69(2))

Nothing in the Family Law Act restricts these rights because a guardian has a limited range of parental responsibilities. These rights are available simply because of the person's standing as a guardian.

However, some caution may perhaps be warranted. In my view, the scheme of the new act splits up the traditional concepts of "guardianship of the person of the child" and "guardianship of the estate of the child." Normally, when an agreement or order under the old act gave someone "guardianship," he or she had both kinds of guardianship, unless the agreement or order expressly said something different. Under the new act, however, it seems to me that a "guardian" is really a guardian only of the person of the child. 

Part 8 of the new act is titled "Children's Property," and deals with a person's rights and duties about children's property that are essentially the rights and duties of someone who is the guardian of the estate of the child. This is what s. 176 says:

Except as set out in section 178 [delivery of small property], a child's guardian is not, by reason only of being a guardian,

(a) a trustee of the child's property, or 

(b) entitled to give a valid discharge on receiving property on behalf of the child.

If the child's property is worth more than than $10,000 — the value of "small property," set out at s. 24 of the Family Law Act Regulation — a guardian is not automatically the trustee of the child's property. The trustee, whether a guardian, a parent or someone else, must be appointed by court order under s. 179; the child's guardians cannot make an agreement that someone will be the trustee of the child's property, the appointment can only be by court order.

As a result of Part 8 of the new act, it is not clear to me that someone who is the guardian of the estate of a child is necessarily a guardian with the power to exercise parental responsibilities. Without a doubt, the powers set out at s. 41 are rights that stem from a person's standing as guardianship of the person of a child, but the power of guardianship over children's estates is not a part of those rights and doesn't result merely from being the child's guardian. Part 8 provides a complete and separate code for the management of children's property that is not, or is scarcely, impinged upon by the parental responsibility of "identifying, advancing and protecting" the child's "financial interests" under s. 41(k)(ii).

My thanks to my colleague, James Cudmore, for bringing this important case to my attention.

Supreme Court Releases Another Helpful Decision on the Paramountcy Problem

On 27 March 2014, I wrote about the case of B.D.M. v A.E.M. on issue of the whether the Divorce Act, as federal legislation, automatically prevents the application of the provincial Family Law Act in cases involving married spouses seeking a divorce. The Supreme Court of British Columbia has just released its decision in J.M.P. v D.R.B. which addresses the same issue, with an admirable economy of language, and reaches the same result. For an overlong discussion of this issue, see my post "Supreme Court Releases Important Decision on Paramountcy Problem between Divorce Act and Family Law Act."

In J.M.P., the mother asked for an order for sole custody under the Divorce Act, as well as "an allocation of parenting responsibilities and parenting time" under the Family Law Act. The court summarized this peculiar position thusly:

"[33] Counsel for J.M.P. submits that any form of joint parenting is not possible ... because, in her submission, the parties lack the ability to discuss matters in a reasonable, amicable way. In her submission, the evidence shows that D.R.B. simply seeks to impose his will on J.M.P. in the event she disagrees with him about any aspect of parenting. 

"[34] The claimant seeks an order of sole custody pursuant to the Divorce Act. Counsel for the claimant concedes that D.R.B. should remain a guardian of the children under the FLA, but submits that, in terms of parenting responsibilities, J.M.P. should have the right to make the decisions. She says that it would be reasonable to require J.M.P. to inform D.R.B. with regard to major decisions affecting the children in order that he might have the opportunity to bring an application to court to challenge the decision in the event he considered she was acting contrary to the best interests of the children. She submits, however, that there is no effective, affordable mechanism that could be put in place to resolve disputes in some other way, such as a parenting coordinator or arbitration."

The father took the position that no custody order was necessary and that all orders necessary to see to the parenting of the children could be made under the Family Law Act:

"[39] D.R.B. seeks an order that would provide for parallel parenting, whereby; each parent would be responsible for making daily decisions during their parenting time; the parents would have to attempt to reach agreement on major decisions; and, failing agreement, the parties attend a mediator, with a court application being a last resort."

In attempting to square this circle, the court observed that:

"[88] Whether it is made under the Divorce Act or the FLA, a parenting order must be made only in accordance with the best interests of the children. ..."

After reciting the key provisions of the two acts on the best interests test, without further elaboration on the law, the court reached this conclusion (important bits in bold):

"[100] I agree with the submission of D.R.B. ... that the parenting arrangement can be defined quite adequately by making orders under the FLA and that there is no need to resort to the Divorce Act. There is no dispute that D.R.B. is to remain a joint guardian of the children under the FLA. The parenting time and the parenting responsibilities can be allocated under the FLA without the need to resort to the awarding of 'custody' per se under the Divorce Act. What is important, in my view, is that the order be precise, unambiguous and as complete as possible in the allocation of parenting rights and responsibilities, including parenting time."

Although I have some doubt about this approach to the resolution of parenting claims in a final order — a similar approach was appropriately taken to the Divorce Act in an interim application in D.Q.L. v W.D.H. — I certainly agree with the result. Guardianship is, after all, a larger, more comprehensive legal concept than custody.

My thanks to my colleague Anna Laing for pointing out this interesting decision.

Supreme Court Releases Important Decision on Paramountcy Problem between Divorce Act and Family Law Act

The excellent decision of Mr. Justice Sewell, of the British Columbia Supreme Court, in the case of B.D.M. v A.E.M. also known as A.M. was released a few days ago. The case is both another example of how high conflict family law disputes are so spectacularly ill-served by the justice system in its present form — the case featured a whopping 17 court applications and the trial required 68 days of court time, in fits and spurts, between 27 February 2012 and 13 September 2013! — but more importantly makes a point about the intersection of the Divorce Act and the new Family Law Act on parenting issues that I've been pressing since the act was first tabled on 14 November 2011.

Background

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.

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):

"[90] 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:

"[94] 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:

"[99] ... 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):

"[117] 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. 

"[118] 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:

"[106] 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.

"[107] 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.

"[108] 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'. 

"[109] 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. 

"[110] 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:

[112] 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:

"[113] 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. 

"[114] 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.

"[115] 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.

Court Comments on Records Requirements for Guardianship Applications

Regular readers will recall that under the new Family Law Act, people who must apply to be appointed as a guardian of a child — remember that some people are automatically guardians — are required to prepare a specific form of affidavit with certain documents attached to it. Section 51 of the new act says this:

(1) On application, a court may

(a) appoint a person as a child's guardian ...

(2) An applicant under subsection (1) (a) of this section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, respecting the best interests of the child as described in section 37 of this Act. ...

To figure out what evidence must be provided to the court, you have to look at Provincial Court Family Rule 18.1 if you're making your application in the Provincial Court, or Supreme Court Family Rule 15-2.1 if you're in the Supreme Court. Both rules say that:

1. you must file a special affidavit, Form 34 in the Provincial Court or Form F101 in the Supreme Court, within a certain number of days of the hearing; and,
2. "any records check, criminal records check or protection orders records check" attached to the affidavit must have been prepared within a certain number of days of the hearing.

To figure out what checks are required, you then have to look at the special affidavit. 

This overall arrangement is somewhat peculiar, as none of s. 51(2), PCFR 18.1 or SCFR 15-2.1 state that the records checks must be provided or explain the sort of checks that are required. This task is left to the affidavit forms and the affidavit forms are, in hindsight, not as clear as they could be. This is what PCFR Form 34 says on the issue (the text in italics is the instructions provided by the form) :

9 Attached to this affidavit and marked as Exhibit ______ is a copy of a British Columbia Ministry of Children and Family Development records check dated ______ . [Note that under rule 18.1, if there is to be no hearing for this application, this records check must be dated within 60 days of the date on which this affidavit is filed.] 

10 Attached to this affidavit and marked as Exhibit ______ is a copy of a Protection Order Registry protection order records check dated ______ . [Note that under rule 18.1, if there is to be no hearing for this application, this records check must be dated within 60 days of the date on which this affidavit is filed.]

11 Attached to this affidavit and marked as Exhibit ______ is a copy of a criminal records check dated ______ obtained from the ______ [name and location of police force or department from which the criminal records check was obtained]. [Note that under rule 18.1, if there is to be no hearing for this application, this records check must be dated within 60 days of the date on which this affidavit is filed.]

These ambiguities were before Judge Frame of the Provincial Court in Director and L.M.P. / L.M.P. v. K.P., a case involving a father who never resided with his child or regularly cared for the child, and accordingly was required to apply to be appointed as the guardian of his child. As the court put it,

"[2] During the course of the proceedings, the issue of [the father's] criminal record check arose. Clearly the criminal record checks conducted both by the Ministry of Children and Family Development, as well as the one obtained by [the father] pursuant to the family law legislation, do not disclose his criminal history. Thus, the issue arose whether a criminal record check was a mandatory or compellable requirement, what form of criminal record check was to be conducted, and what results are adequate for the purposes."

After reviewing the requirements of the act and the Rules of Court, the judge embarks on a very welcome discussion of the nature of police policies, and the available criminal record checks, their costs, their wait periods and their relative inadequacies. (This overview will be very helpful for anyone who must complete a Form 34 or Form F101, see paragraphs 12 to 39 of the judge's decision.) Here are the court's conclusions, with the particularly important bits in bold:

"[47] It is clear that in order to meet the purpose and requirements of the legislation, the criminal record check to be performed must include a vulnerable sector search [a special search that reports all police involvements, all information related to non-convictions and all charges regardless of what happened with them]. ... 

"[49] I am not satisfied that the existing legislation is sufficient to compel a person to obtain a criminal record check, much less the secondary fingerprint search. Where there is such a positive obligation upon an applicant to disclose such sensitive information, there ought to be mandatory language in some part of the legislation, be it the Family Law Act, the rules, or the regulations bringing the form into force. 

"[50] Furthermore, I am not satisfied that Form 34 contemplates any more than the preliminary criminal record check such as the one obtained by [the father]. Paragraph 12 of that affidavit form provides a section for the applicant to complete where the criminal record check omits some part of a person’s criminal history. It recognizes that the criminal record check may not be complete. The [applicant] is only required to disclose convictions for which there is no pardon. Presumably if a person were convicted of a sexual offence for which they were pardoned, there would be no obligation to disclose it. This defeats the whole apparent intention of protecting children who are members of a vulnerable sector.

"[51] I cannot tell from the evidence before me whether a person can obtain a vulnerable sector search for themselves through any other police agency, but it certainly cannot be obtained from the Vancouver Police Department for personal reasons. It appears this is based on RCMP policy. If applicants cannot obtain a vulnerable sector search, it seems to defeat the whole purpose of having the criminal record check done for a guardianship application. ... 

"[54] I am not satisfied that I have the authority to order [a] secondary fingerprint search absent any legislation empowering me to do so. There is no inherent jurisdiction in this court to make such orders. This goes beyond matters of procedure over which this court does have some inherent jurisdiction. ... 

"[56] The most practical procedure would be for [the father] to attend the detachment where he obtained his initial criminal record check and request a fingerprint search. While I cannot order him to do so, it is more practical than he or any other party trying to determine all of the detachments with which he had any engagements and make applications for disclosure of their records. ... "

In other words, the specific check an applicant for guardianship must obtain for the purposes of the Family Law Act is the particularly intrusive vulnerable sector search. However, an applicant cannot be compelled to request the vulnerable sector search, the form doesn't appear to require it, and policy policy appears to prevent applicants from getting it. Isn't this awkward. Making matters worse, the court's proposed solution — having the applicant attend at a police station to request a special search using fingerprint identification— is something that an applicant cannot be compelled to do.

It appears, then, that a person applying to be appointed as the guardian of a child is only required to provide the sort of brief check you can get by walking into a police station and asking for the check. It would be prudent to ask for the secondary fingerprint search; whether court can force you to do this or not, it will help to demonstrate your good faith in making the application.

Now, the Supreme Court is a court of inherent jurisdiction, which means that it is not limited by what the legislation says it can do when it makes orders. It is also a court of parens patriae jurisdiction, which means that it can make such orders as are necessary for the benefit of a child, usually when there is a gap in any applicable legislation. This may affect the outcome when similar issues arise in that court.

The Masuhara Model of Shared Parental Responsibilities

In his recently released judgment in Van Kooten v. More, Mr. Justice Masuhara of the British Columbia Supreme Court has made an order distributing parental responsibilities between guardians under the Family Law Act that may find use as a model for future orders and agreements on the subject:

The guardians will exercise all parental responsibilities with respect to the child on the following terms: 

1. in the event of the death of a guardian, the surviving guardian(s) will be the only guardian(s) of the child; 

2. each guardian will have the obligation to advise the other guardian(s) of any matters of a significant nature affecting the child; 

3. each guardian will have the obligation to discuss with the other [guardian(s)] any significant decisions that have to be made concerning the child, including significant decisions about the child’s health (except emergency decisions), education, religious instruction and general welfare; 

4. the guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; 

5. in the event that the guardians cannot reach agreement on a significant decision despite their best efforts, Mr. More will be entitled to make those decisions and the other guardian(s) will have the right to apply for directions on any decision the guardian(s) consider(s) contrary to the best interests of the child, under s. 49 of the Family Law Act;

6. each guardian 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; and,

7. the guardians will maintain a common exchange journal which is to be exchanged when the child is transferred to the other [guardian(s)], and each guardian is to record on a daily basis while the child is in its care matters relating to the child including

a) school (such as events, key dates, report cards, newsletters, outings, assignments, home reading, parent/teacher meetings and homework),

b) health (observations of the child, child’s complaints, doctors' appointments, dental appointments, medications, injuries and diet),

c) social (invitations, activities taken and family events),

d) extracurricular activities (registration, schedules, equipment and events),

e) clothing,

f) key contact information for doctors, dentists, daycare and sitters, and [guardians'] emergency contact numbers, and

g) any other matter relating to the care of the child.

This order clearly draws its inspiration from the popular the Joyce model of joint guardianship under the former Family Relations Act, and includes special provisions governing communication between guardians about important events in the child's life.

See my post "The Crawford Model of Shared Parental Responsibilities" for a discussion of the sharing of parental responsibilities required in the case of G.P. v. M.J.R.P., and my blog post "Adapting Joyce and Horn Models for Divorce Act and FLA" on the Courthouse Libraries BC website for other potential models.

My thanks to my colleague Thomas Wallwork for bringing this helpful new decision to my attention.