So You Want To Be A Guardian?

With the coming into force of the Family Law Act, SBC, 2011, ch. 25 (FLA) on March 18, 2013, the law pertaining to the guardianship of children changed in British Columbia. Under the former act, the Family Relations Act, R.S.B.C. 1996, ch. 128, ‘guardianship’, was often used interchangeably with ‘custody’. These terms under the former act implied possessory rights over children. With the coming into force of the new FLA and the collateral amendment to the definition of guardianship, it is clear that children have ‘rights’ and parents have ‘responsibilities’.

In general, a child’s parents will be his or her guardian. A parent is a guardian of a child if that parent lives with the child and/or regularly cares for the child. If a parent has never lived with a child, they are not considered a ‘guardian’ merely through biology. Only a parent may become a guardian through a agreement. If an agreement cannot be reached with the other parent, the non-parent guardian will have to apply to court to be appointed a guardian of the child. Similarly, ‘other persons’ may apply to become guardians of a child such as a close relative, or even non relations.

The evidence that must be put forward to the court an application to be appointed a guardian is extensively outlined in the FLA (section 51). That person must show it is in the best interests of the child for that person to be appointed the child’s guardian. The evidence must include (Form F101 Supreme Court Family Rules):

1. The proposed guardians relationship with the child;
2. Proposed care arrangements;
3. Any incidence of family violence;
4. If the proposed guardian has other children they care for;
5. Any involvement in other family/divorce law court proceedings; and
6. The views of the child with respect to that appointment, if the child is over 12 years of age.

The proposed guardian will also have to obtain a number of ‘record checks’ to their application to be appointed guardian by court order. These include:

1. British Columbia Ministry of Children and Family Development record check;
2. Protection Order Registry check; and
3. Criminal Record check.

The record checks must be current; dated within 60 days of the hearing the application to court to be appointed guardian. The application must be on notice to all of the child’s current guardians and ‘adults with whom the child usually lives and to anyone else who the court considers appropriate’. These applications will take some time to gather necessary evidence. In the short term, the court can make an interim order, although that will expire 90 days after the order is made.