Necessary, Introductory Comment By lawyer

See, also, Family Law Tsunami to Hit British Columbia.

The law, as explained in this article has been, in most points of detail, but not substantially on many points, updated, modernized when the Province of British Columbia replaced the aging Family Relations Act in March 2013, with a new law called the "Family Law Act". More detail also below. To get into our secret archives and read about the old law, the once-beloved "FRA", see Custody & Guardianship under BC's Family Relations Act.

The legalese, formal name of the new FLA is the Family Law Act, SBC 2011, c 25.

No Internet link is truly "permanent" but here are two, hopefully stable links to the new law: CanLII's: http://canlii.ca/t/8q3k; and the BC Queen's Printer URL: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_11025_01.

Introduction

The Family Law Act, which, because we're lawyers, we will refer to now as "FLA", did not keep the nomenclature of "custody and guardianship" but, instead, did away with "custody" altogether, and uses only the term guardianship in refererence to the whole bundle of parental rights once several by some devilish judge-made concoction, or reverse engineering of the legal terms custody and guardianship.

By comparison, the Divorce Act never uses the word guardian.

 

The rules for granting guardianship of a child (elsewhere sometimes called custody) does not vary a great deal from province to province although, as with all points of law, for a few bucks and a trip to Niagara Falls, you will find lawyers to disagree with this statement.

Nor is the BC law substantially different from the rules given under the federal Divorce Act (see the Twenty-Three Commandments of Child Custody under the Canadian Divorce Act).

Some of the custody (they do use that word in the federal law) and access principles under the Divorce Act which are often also plead in guardianship hearings under provincial law, include preservation of the status quo, non-separation of siblings, the "tender years doctrine", the non-relevance of conduct issues, and the guidelines to be followed when a custodial parents wants to move.

Not sure if this is need-to-know, but a number of procedural or legal rules are different from actions under the federal Divorce Act. British Columbia (BC) courts are bound to child custody decisions of the B.C. Court of Appeal which would not bind courts in other provinces. This summary takes into account some of those decisions.

Also, this summary is only general legal information and should not be taken as legal advice to be applied in a real situation.

For one thing, it is not possible to examine all of the sections of the FLA in this brief summary, or other custody-related laws such as B.C.'s Child, Family and Community Service Act.

For another, as the well-being of children and the future of our society depends on the welfare of our children, and within a situation where the parents are intent on bickering and quite likely paranoid or unreasonable or both, any binding agreement undertaken on child guardianship should only be taken after consulting legal or other professionals.

BC's FLA has many awkward legal terms such as "contact with a child" and "parentage" awkward legalistic term but intended to refer to those rights that need to be determined in a Court order when seperating patrents cannot, as nature intended, simply implement a natural and feridnly never-written arrangement without lawyers or legal terms.

Any time a guardianship application is brought before BC court under the FLA, the application has to be served on all parents as well as third-parties if those third-parties have temporary or permanent care of the child (for example, a grandparent, relative or foster home).

Although there are some minor differences which might keep law professors talking for hours, and for most extents and purposes, guardianship in the FRA means the same thing as custody: a package which includes all the rights, duties and responsibilities of a parent. The only technical difference is that in B.C., "custody" may not include authority over the child's estate (i.e. their property) whereas unqualified "guardianship" does.

As is the case with all child guardianship and custody laws in Canada, the FLA says that guardianship is decided by considering the best interests of the child. The FRA specifies a few factors which the judge must consider including the health and emotional well being of the child, the views of the child (if nine or over), the ties of affection that have developed, the education of the child and the capacity of persons eligible for custody to discharge parenting duties (pardon the legalese but these are words used in the FRA).

Unless there is a court order to the contrary, parents enjoy joint guardianship while they live together, whether they are married or not.

Joint means that they must consult and agree on major decisions affecting the welfare of the child. The courts will lean towards joint custody upon separation unless there is animosity between the parents, or if one of the parents does not want custody.

One outspoken Supreme Court of Canada judge recently said that joint custody is "an ideal solution of optimism over prudence" (Young v Young (1993) 4 SCR 3) while clearly stating that in family breakup situations, decision-making should be vested in only one parent.

But BC courts continue to prefer joint custody arrangements to the point where there is some suggestion that an undeclared legal presumption exists in favour of joint custody. But family law lawyers will tell you that this literally changes on a judge-by-judge basis.

The courts just about never order split custody, a rare custody order where custody is transferred from parent to parent, like a ping-pong ball, every time the child is with one or the other of the parents.

The FRA provides a list of who has custody of a child:

  • As noted above, where the parents still live together, joint custody exists.
  • When the parents are separated, the custody is exercised exclusively by "the parent with whom the child usually resides".
  • If custody has been decided in a court order, then custody is according to the court order.
  • If a written agreement exists that establishes custody, then custody is according to the agreement.

If there is a conflict over custody rights, then whoever has a valid court order granting custody prevails.

Failing a court order, but where there is a written agreement which covers custody, then the person with custody according to that agreement prevails. Failing either a court order or an agreement, the person with whom the child normally resides has custody. If both parents appear to claim their home as the child's residence, then custody goes to "the person who usually has day to day personal care of the child."

Parents can make wills which appoint a guardian to their child in the event of their deaths (see §50 of the Infants Act). But the death of one parent/guardian does not affect the surviving guardian who then exercises these rights exclusively.

Parents can agree on which of them will be guardian but the court can overlook this agreement if, in the court's opinion, it is contrary to the best interests of the child.

BC courts can award guardianship to third-parties such as grandparents or relatives but only in exceptional circumstances such as the existence of a strong bond between the child and the third party, where such an order would continue the living arrangements presently enjoyed by the children (i.e., respect of the custody status quo) or where the court feels that there would be a risk to the child's welfare if it were to be placed in the custody of a natural parent. This is a good example of how the interests of the child prevails over the interests of parents in child custody cases. In these cases, where the child is over the age of twelve, the child's consent is required although, once again, the judge does have the power to overrule the child's preference.

BC courts will consider the views of the child provided that the child is old enough (generally, at least nine) but is not bound by the child's preference (see Views of a Child & Separated Parents: Living With Dad or Mom).