Custody is an old-fashioned term. It remains in the Divorce Act and is available to married people only through the Divorce Act (federal legislation). Common law people fall under the Family Law Act (provincial legislation). Under the Family Law Act, the term “custody” was eliminated under the reasoning that people fight over “custody” so if it is eliminated people won’t have anything to fight over.

Only “guardianship” is allowed now. While “custody is only available to married people, guardianship is available to both married and common law people. If the parties were living together when the child was born, they automatically become “guardians of the child”. One would have to apply to try to remove the other parent from guardianship. One does not have to ask for guardianship if the parties were living together at the time of the birth of the child.

If a person was not living together at the time that a child was born, that person can apply for guardianship. The Provincial Court requires those persons to obtain 3 checks: Ministry of Children and Families (i.e., were children ever taken from that person or does the Ministry have concerns about that person), Criminal Record (i.e., is that person a decent person), and Protection Order (i.e., does that person have a record of beating on a spouse such that Protection Orders had to be issued against them). The Supreme Court does not require those checks.

The bottom line is: is it in the best interests OF THE CHILD to have that person included as a guardian? That is the test the court applies IN EVERY SITUATION AND EVERY ISSUE.

So, what is guardianship? It is essentially “custody”. Instead of parental rights, the guardians have “duties and responsibilities” to make decisions for the child such as religion, education, health and legal matters. S.41 of the Family Law Act sets these out for the parents.

Guardianship has nothing to do with parenting time. The time that a parent has with a child is called “parenting time”. A person can have parenting time with a child while having no guardianship at all.