In a family law case, WRA, Justice Kenny of the Alberta Court of Queen's Bench adopted these words:
"... guardianship ... legal arrangement under which one person (a guardian) has the legal right and duty of care for another and his property."
Similarly, in an immigration case, Hussain v Canada, the tribunal adopted these words:
"Guardianship is the office or duty of one who legally has the care and management of the person, or the estate, or both, of a child during its minority."
The interchange between the virtually identical concepts of custody and guardianship in family law is the source of some confusion. Some jurisdictions prefer the term custody, others, guardianship, and still other use both, attempting to make a distinction between the two.
In Hewer (England) Justice Suchs wrote:
"In its wider meaning the word custody is used as if it were almost the equivalent of guardianship in the fullest sense - whether the guardianship is by nature, by nurture, by testamentary disposition or by order of a court. (I use the words fullest sense because guardianship may be limited to give control only over the person or only over the administration of the assets of an infant.)...
"Such guardianship embraces a bundle of rights or to be more exact, a bundle of powers, which continue until a male infant attains twenty-one, or a female infant marries. These include power to control education, the choice of religion, and the administration of the infant's property. They include entitlement to veto the issue of a passport and to withhold consent to marriage. They include also, both the personal power physically to control the infant until the years of discretion and the right (originally only if some property was concerned) to apply to the courts to exercise the powers of the Crown as parens patriae. It is thus clear that somewhat confusingly one of the powers conferred by custody in its wide meaning is custody in its limited meaning, i.e., such personal power of physical control as a parent or guardian may have."
Similarly, in a 1967 decision issue from the Australian state of Tasmania, Capodici, Justice Crawford wrote, adopting in part words of a previous decision:
"It may be guardianship and custody, when used in contrast, are several aspects of the same relationship. The former can very well be employed in a special context to denote duties concerning the child ab extra; that is, a warding off; the defence, protection and guarding of the child, or his property, from danger, harm or loss that may enure from without. Commonly guardianship is used in a wider sense.
"Custody essentially concerns control, and the preservation and care of the child's person, physically, mentally and morally; responsibility for a child in regard to his needs, food, clothing, instruction, and the like.
"An order for custody to a mother or other person does not deprive a father of all his rights and obligations in respect of his child. He remains, subject to the rights conferred on the person to whom custody is given by the court, the natural guardian of the person of the child, and among the residual rights which remain to him are any rights which he may have at law with regard to the control of the child - Re T. (an Infant). It follows that if an order is made transferring the custody of the children to the wife, in this case the husband still remains the guardian of the children, qualified only by the wife's right to custody. In applications to the court concerning the children he would therefore have not only the standing as a party but also he would have the right to claim as the guardian of the child carrying out his duty of protecting or guarding of the child from danger, harm or loss."
REFERENCES:
- Duhaime, Lloyd, Family Law
- Duhaime, Lloyd, Family Law Dictionary
- Duhaime, Lloyd, Legal Definition of Custody
- Duhaime, Lloyd, Legal Definition of Guardian
- Hewer v. Bryant (1969) 3 All ER 578; quoted with approval by the Alberta Court of Appeal in R v KME 142 DLR 3d 490 and at 31 RFL 2d 25 (1982)
- Hildebrand v Jacobson 137 AR 134; 39 ACWS 3d 321 and at 1993 AJ 176
- Hussain v Canada 2002 IADD 764
- R. v Enkirch 31 RFL 2d 25 (1983)
- WRA v GFA 2001 ABQB 945; also at 100 Alta. LR 3d 59; 110 ACWS 3d 329 and 2001 AJ 1472