Child Custody and Access (DA); Parentage, Guardianship and Contact (FLA) - Guardianship Under the FLA

A guardian is legally responsible for his or her child’s care and upbringing. Section 39 of the FLA sets out that cohabiting parents are presumed to each be a guardian of his or her child both during the relationship and after separation.  If a parent did not cohabit with a child, he or she is only a guardian  if he or she regularly cares for the child, through agreement, court order or in certain assisted reproduction circumstances.  A person who is not a parent of a child can only become a guardian by way of court order and by reference to the provisions in s. 50 and 51 of the FLA. There is no basis for ordering that guardians may be designated sole or joint, a parent is or is not a guardian, see S.H. v. R.G., 2013 BCPC 114. The FLA does allow the court to remove a guardian under section 51(b).

Parenting Arrangements under the FLA

Parenting Arrangements is defined to include parental responsibilities and parenting time.  Only a guardian of a child may have parental responsibilities and parenting time.  Section 40 of the FLA sets out that, unless an agreement or court order provides for a different allocation, each guardian has all parental responsibilities.  Parental responsibilities are set out at s. 41 of the FLA.  The section sets out a long list of responsibilities that a guardian must exercise in the best interests of his or her children, and includes such items as day to day care, where the child will reside, who the child will associate with, making decisions regarding education, culture and religion, make medical and dental decisions, and to exercise any other responsibilities reasonably necessary to nurture the child’s development.

Section 42 of the FLA confirms that the guardian has responsibility for making day to day decisions for the child during his or her parenting time and s. 43 confirms that a guardian must exercise his or her parental responsibilities in the best interests of the child.

Contact with a Child

Contact refers to a child’s time with someone who is not a guardian.  It replaces the concept of access and a contact person does not have parental responsibilities for the child.  Section 58 of the FLA sets out specific rules about agreements between guardians and non-guardians regarding contact and notes that the agreement must be in the best interests of the child.  Section 59 allows the court to make orders respecting contact, including the specific ability to order that the transfer of the child be supervised or that the entire time period of contact be supervised by another person.  As always, any order made must be in the best interests of the child.

Relocation with a Child

The FLA specifically considers circumstances where one parent wishes to move to another location with the child.  Section 64 of the FLA allows the court to order that a person not remove a child from a specified geographical area.  Section 66 stipulates that in the event a guardian plans to relocate himself or herself or a child or both, he or she must provide all other guardians or persons with contact at least 60 days’ notice of the date of the relocation and the name of the proposed location.   Sections 67 to 71 set out the steps to be taken when a guardian provides notice of an intended move.  The parties must try to agree and cooperate, but if that is not successful, the party who objects to the move must, within 30 days of receiving the notice, file an application with the court for an order to prohibit the relocation. If such an application is made the relocating parent must convince the court 1) that the proposed relocation is made in good faith and 2) that the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, those entitled to contact or have a significant role in the child's life. If the guardian opposing the relocation has nearly equal parenting time, then the relocating parent must also show 3) that the relocation is in the child's best interest.

 

If you are faced with a file that concerns relocation, you should conduct thorough research regarding developments in the law.  There is now a great deal of case law on this issue.

Community Discussion

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Throughout the entire process, even if at first mediation is not selected by the parties, the lawyer should continue to re-visit the option of mediation. It is never too late to go into settlement negotiations in order to limit the amount of time spent in courts litigating such important issues as parenting arrangements. Parties may spend years and spend quite a lot on litigation and still have an outcome that does not benefit the parties nor the children. Lawyers should remind their clients that they know their children and their situation the best and they are the ones who should be making the arrangements, not an impartial judge.