Child Custody and Access (DA); Parentage, Guardianship and Contact (FLA) - Divorce Act or Family Law Act?

Divorce Act or Family Law Act?

The FLA allows parents and other persons to apply for orders for parentage, guardianship or contact to the children. The DA allows spouses to apply for custody and access and other persons may apply for custody and access with leave of the court. Whenever applications involving custody and access, or parenting time, guardianship and contact are considered by the courts, s. 37 of the FLA sets out that the only consideration is the best interests of the child, and s. 16(8) of the DA also sets out that the best interests of the child is the only consideration.

The concepts of custody and guardianship are often confused and are indeed confusing (see Anson v. Anson, (1987), 10 B.C.L.R. (2d) 357 (Co. Ct.) for a discussion of custody and guardianship). For the most part, the concept of guardianship concerns matters relating to the parenting of children and includes the right to direct the child's health, education, schooling or religion, and to be consulted and obtain information from third parties related to those matters. Unless otherwise specified, someone with guardianship is a guardian of both the person of the child and the estate of the child. Custody usually connotes legal rights over the child as well as physical day-to-day care and control of the child. The court has broad discretion to allocate the incidents of custody and guardianship between parents having the best interests of the children in mind.

Community Discussion

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Sometimes, clients do not understand that they are already guardians and want to apply for guardianship. The legislation on parentage, guardianship, and rights and responsibilities of the parent/guardian need to be discussed. Often, grandparents also feel that they should have rights as the guardian and it should be explained to the parties the Family Law Act interpretation of a guardian in order to avoid any conflicts in the future.