How does the Family Law Act deal with caring for and spending time with children?

Guardianship, parental responsibilities and parenting time under British Columbia’s Family Law Act

Part 4 of British Columbia’s Family Law Act is titled “Care of and Time with Children”.  Part 4 sets out a system of rights and responsibilities towards children.  It allows parties to make agreements, and the court to make orders, about those rights and responsibilities.   It also explicitly directs parties and the court to only consider the best interests of a child.

There are three key concepts that most separated parents will need to understand under Part 4 of the Family Law Act:

1. Guardianship
2. Parental responsibilities
3. Parenting time

Guardianship is the full “bundle of rights and duties” that come with being a parent.  With some exceptions, parents are generally guardians of their children. (See section 39 of the Family Law Act.)

A guardian’s rights and duties include parental responsibilities, which are listed in section 41 of the Family Law Act.  Parental responsibilities include the ability to

1. make decisions about a child, such as decisions about their day-to-day care, control and supervision;
2. make applications on behalf of the child, such as an application for a passport;
3. give, refuse or withdraw consent for a child (e.g. medical, dental or other health treatment); and
4. request and receive information about the child (e.g. school or doctor).

Guardians share parental responsibilities equally unless there is an agreement or court order that says otherwise.

A guardian can authorize another person to exercise some of the parental responsibilities if the guardian is unable to do so.  A guardian can also appoint someone else to become a guardian in case of death (a “testamentary guardian”), or if the guardian is facing terminal illness or permanent mental incapacity, (a “standby guardian”).   A guardian cannot “pass on” more parental responsibilities than they have by appointing a testamentary or standby guardian.

A guardian has the right to apply for a court order allocating parental responsibilities among the guardians.  A guardian can also apply under section 49 of the Family Law Act for directions respecting an issue affecting a child.

If, due to a court order, a guardian has no parental responsibilities, the guardian will still have the right to apply for a variation of that court order if there has been a change in circumstances under section 47 of the Family Law Act.

A parent who is not a guardian of a child has a legal status similar to someone who is not a parent.  Someone who is not a guardian cannot have parental responsibilities or parenting time.  They can, however, apply for contact with a child.

Can you terminate a person’s guardianship under the Family Law Act?

It is possible but very rare to get a court order terminating a person’s guardianship, even if a judge is concerned about a guardian’s ability to parent a child.  The judge will first look at whether the problem can be resolved by making orders as to parental responsibilities and parenting time.  For example, a guardian with a substance abuse problem might have a condition placed on their parenting time; perhaps they are ordered not to consume alcohol within 24 hours prior to and during their parenting time.   An order terminating guardianship is only granted as a last resort.

Can you get a court order appointing a person a guardian under the Family Law Act?

It is also possible to get a court order appointing someone a guardian.  There are some special requirements for making that kind of application, including a requirement to get a criminal record check, and protection order registry search.

Warning: Old orders and agreements under the Family Relations Act work differently!

British Columbia’s Family Law Act came into force in 2013.  Before the Family Law Act, there was the Family Relations Act.  The Family Law Act and the Family Relations Act talk about care of and time with children in very, very different ways.  The Family Relations Act talked about custody and guardianship.  The Family Law Act does not have custody at all, and guardianship under the Family Law Act is very different from under the Family Relations Act.  If you are looking at a court order or an agreement that was made before the Family Law Act came into force, the words in that order or agreement might mean something other than what I have described in this article.

Further reading:

Government of BC: What does it mean to be a guardian?

Part 4 of the Family Law Act

A.A.A.M. v. British Columbia (Children and Family Development), 2015 BCCA 220

J.W.K. v. E.K., 2014 BCSC 1635

M.A.G. v. P.L.M., 2014 BCSC 126