When it comes to contentious parenting issues, this is one of the most frequently asked questions family lawyers will receive. However, this question is often rooted in misunderstandings about what guardianship is, who is a guardian, and the likelihood of guardianship being terminated. In order to determine the possibility of removing your ex spouse as a guardian of your child, consider the below.
Who is a Guardian?
Guardianship is defined in s. 39 of the British Columbia Family Law Act (“FLA”). This section states that parents are generally guardians of children after they separate if they lived together with the child. However, if a parent has never resided with the child, pursuant to section 39(3) of the FLA, they are not a guardian unless one of the following applies:
- the child is the result of assisted reproduction as defined in s. 30 of the FLA;
- there is an agreement stating otherwise between the parent and all of the child’s guardians; or
- the parent regularly cares for the child.
If your spouse is not the child’s parent, they do not automatically become a guardian of the child upon you marrying or becoming marriage-like, as per section 39(4) of the FLA. Thus, step-parents are generally not guardians, unless there is an agreement or order stating otherwise, though they may possess various rights by virtue of the Divorce Act if they are married.
While parents are generally guardians, that is not to say that only parents are guardians. Guardians who are not parents can become a guardian by agreement under the Adoption Act or the Child, Family and Community Service Act or by court order under the Family Law Act, following a specific application procedure. Alternatively, the court may appoint a non-parent as a child’s guardian. However, if the child is above the age of 12, this may only be done with the child’s written consent unless the court is otherwise satisfied that it is in the best interests of the child.
Thus, when determining the question at hand, first ensure that your spouse is a guardian within the meaning defined in the FLA.
What is a Guardian?
Guardians have special privileges when it comes to the children they are guardians of. Only a guardian can apply for parenting time and parenting responsibilities, pursuant to section 40(1). Parenting time refers to the time spent by a parent with a child during which they typically exercise day-to-day decisions affecting the child’s care during that time. Parenting responsibilities refers to general decision-making for the child, and specifically includes significant decisions such as where they will reside, their education, their medical care, among others.
This is not to state that only guardians can have time with the child. Section 59 of the FLA states that the court can order a person who is not a guardian to have contact with a child. This provision typically refers to parents who are not guardians, or grandparents.
What are the Bases of Terminating Guardianship?
Most often, there are at least two guardians. It is not a question of the court awarding sole guardianship, but of taking the other person’s guardianship away.
The threshold for terminating guardianship is very high, and often rightfully so. The courts recognize that it is generally in the best interests of children to foster a relationship between them and their parents. The case of M.A.G. v. P.L.M., 2014 BCSC 126 stated that it is only in the most extreme circumstances that guardianship should be terminated, only if nothing else, including a complete and total reallocation of parenting responsibilities will do.
However, there are extenuating circumstances in which guardianship will be terminated. The FLA does not specify the circumstances in which it is appropriate to terminate guardianship. However, a review of BC case law shows the follow circumstances:
- after significant injuries to the child leaving them blind and a failure to cooperate with the Ministry in developing a parenting plan (B. v. L.C., 2014 BCPC 207);
- after no participation in the children’s upbringing with a history of drug use, sexual impropriety and complete relinquishment of parental responsibilities (C.S. v. W.M.M., 2017 BCPC 19);
- where the father relocated to Mexico and had virtually no contact with the child for nine years, and the child clearly expressed a desire to be adopted by her step-father (Lessard v. Mahoney, 2019 BCSC 551).
Be aware that the Divorce Act does not really have a separate concept of guardianship anymore, (the closest analogue used to be “custody” which doesn’t exist anymore) and the Divorce Act is still the paramount legislation.
To determine whether this option is feasible for you, talk with one of our family law specialists at YLaw.