Child Guardianship Lawyers in Surrey

Why Guardianship Is the Question Behind Every Parenting Case

In British Columbia, guardianship is the gateway. Only a guardian may have parental responsibilities and parenting time with respect to a child (Family Law Act, s. 40(1)). A person who is not a guardian may have contact with a child, but no share in the decisions that shape the child's life. So before anyone argues about schedules or schools, the first question is always the same: who are this child's guardians?

SiLaw Group Family Lawyers is a boutique family law and mediation firm in South Surrey. Family law is the only kind of law we practise, and we work in English and Punjabi. This page explains who is a guardian automatically, who is not, and how the court appoints a guardian. For the wider picture of parenting law after separation, start with our parenting services overview.

Who Is a Guardian Under Section 39

Part 4 of the Family Law Act starts with parents:

• While a child's parents are living together, and after the parents separate, each parent is the child's guardian (s. 39(1)). Separation by itself does not take guardianship away from either parent.
• An agreement or order made after separation, or when the parents are about to separate, can provide that a parent is not the child's guardian (s. 39(2)).
• A parent who has never resided with the child is not the child's guardian unless one of three things applies: the person is a parent under section 30 of the Act, which deals with certain parentage arrangements; the parent and all of the child's guardians agree that the parent is also a guardian; or the parent regularly cares for the child (s. 39(3)).
• Marrying a child's guardian, or entering a marriage-like relationship with one, does not by itself make the new partner a guardian (s. 39(4)).

One more rule closes the loop. A person cannot become a child's guardian by agreement unless that person is the child's parent, apart from routes under adoption and child protection legislation (s. 50). A grandparent, stepparent or other relative cannot simply be added by signing a document; they need a court order.

What a Guardian Actually Does

Guardianship is not a percentage of time. It is the legal status that carries parental responsibilities, the decisions listed in section 41 of the Act: where the child lives, education and extracurriculars, health care consents, cultural, linguistic, religious and spiritual upbringing, passports and consents, and the day-to-day care of the child. It also carries parenting time, which is the time the child is with a guardian under an agreement or order (s. 42). A guardian with a modest schedule is still fully a guardian, and every responsibility must be exercised in the best interests of the child (s. 43(1)).

Becoming a Guardian by Court Order

On application, a court may appoint a person as a child's guardian, and may also terminate a person's guardianship in certain cases (s. 51(1)). Three features of these applications catch people off guard:

• The evidence is mandatory. An applicant must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court Family Rules, about the best interests of the child as described in section 37 (s. 51(2)). In practice, expect a sworn application package that addresses your history with the child and the child's needs, together with the background screening the court rules require of guardianship applicants.
• Consent does not skip the homework. The evidence requirement applies even where everyone consents to the appointment (s. 51(3)).
• Older children have a voice. If the child is 12 or older, the court must not appoint someone other than a parent as guardian without the child's written approval, unless satisfied the appointment is in the best interests of the child (s. 51(4)).

Notice is part of the process too. Each parent or guardian of the child, and each adult the child usually lives with who generally has care of the child, must generally be served with the application, though the court can grant exemptions (s. 52).

We prepare guardianship applications for stepparents, grandparents and other relatives, and we act for parents responding to them. Getting the package right the first time matters, because the court cannot make the appointment without the required evidence in front of it.

Guardianship When a Guardian Dies or Becomes Seriously Ill

The Act lets a guardian plan ahead. A guardian may appoint a person to become the child's guardian on the appointing guardian's death, by will or in a prescribed form (s. 53). A guardian facing terminal illness or permanent mental incapacity may appoint a standby guardian who steps in when the conditions set out in the appointment are met (s. 55). In both cases the appointing guardian must consider the best interests of the child only, cannot hand over more responsibilities than the appointing guardian holds (s. 56), and the appointment takes effect only if the appointed person accepts it (s. 57).

These appointments have formal signing and witnessing requirements, so have them prepared or reviewed rather than improvised. And a caution worth knowing: if a guardian dies, a surviving parent who is not a guardian does not automatically become one; an appointment or court order is required (s. 54).

Frequently Asked Questions

Is a Stepparent Automatically a Guardian in BC?

No. Marriage or a marriage-like relationship with a child's guardian does not by itself create guardianship (s. 39(4)), and a stepparent cannot become a guardian by private agreement (s. 50). A stepparent who wants guardianship needs a court order under section 51.

Can a Grandparent Get Guardianship of a Grandchild?

A grandparent can apply under section 51, and the court decides on the best interests of the child, with the required evidence and, for a child 12 or older, the child's written approval unless the court is satisfied the appointment serves the child. Many grandparents actually want time rather than decision-making, and for that the Act offers contact instead; see our post on contact orders for non-guardians in BC.

Does a Parent Lose Guardianship After Separation?

No. Each parent remains a guardian after separation (s. 39(1)). That only changes if an agreement or order made after separation, or on the way into it, provides that a parent is not a guardian (s. 39(2)).

Talk to a Guardianship Lawyer in Surrey for Free

Whether you are applying, responding, or planning ahead for your children, the first 30 minutes with us are free, in English or Punjabi, by phone, video, or in person at Suite 201, 3108 Croydon Drive in South Surrey. Call (778) 381-9977 or Book Now for a Free Consultation.

This page is legal information, not legal advice. For advice about your own situation, speak with a lawyer.