Child Custody and Child Guardianship Law

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What is child “Custody” compared to “Guardianship”?

People believe that “Custody” means power or rights involving the child(ren). In truth “Custody” usually means legal ability, such as the ability to take the child across the border. “Guardianship” means decision making. Practical decisions about religion, education, and health care are the most common forms of guardianship. In British Columbia the law changed in March 2013 when the Family Relations Act was replaced by the Family Law Act.

The term “Custody” still exists in the Divorce Act Canada. Obviously it applies to married parties and custody orders can still be made along with guardianship orders if the parties are married. Married parties generally find themselves in Supreme Court.

The term “Guardianship” comes from the Family Law Act. It replaces the term “Custody”. “Guardianship” in the Family Law Act still means all of the decision making of married people but it includes all aspects of custody into it as well and the term “Custody” disappears. The Family Law Act governs parties who are not married. Unmarried parties generally find themselves in Provincial Court.

In the Family Law Act it can be argued that the term “Custody” was removed from the language so that there was no “custody” to fight over. Parties who were living together when the child was born are automatically “Guardians” of the child. If the parties were not living together when the child was born then it is the father who has to ask for “Guardianship”. In that type of application he has to submit himself to several tests and file the paperwork to prove that he has done those clearance tests before the court will consider him as a possible candidate for guardianship.

If one wants sole guardianship (or sole “custody” in the Divorce Act for that matter) one needs to apply for it. One should understand that asking for sole custody/guardianship is unusual and requires a good explanation as to why one should receive such an unusual order.

There is a trend in the court towards involving the parents equally as guardians of the child. It is believed that a child with both parents will do better in life than a child who is missing one parent or the other. This general movement inside of family law is not limited to unmarried parties within the Family Law Act in Provincial Court, it has a presence in Divorce Act married parties in Supreme Court as well.

The language in the Family Law Act shows the changes in family law:

In recognition of the parenting that is done when either parent has the children in their care/time, the word “access” has been eliminated and replaced with the term “parenting time”.

Parents do not have guardianship/custody rights, they have parenting “duties” and “responsibilities”.

Due to this trend in favour of shared parenting, people who want sole custody/guardianship had better have their good reasons for such an unusual request, clearly stated and presented to the judge.

Parties who are being blocked from the lives of the children need to have their reasons for inclusion clear and well presented to the judge in order to have the trending, “shared parenting” applied to them.

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