Guardianship in British Columbia

Many people don’t realize that there is a difference between guardianship and custody—“custody” refers to who has care of a child on a regular basis, whereas “guardianship” is about having parental rights and obligations to the child, even if the child is not in your care on a day-to-day basis. For example, a mother may have full custody of a child, but the child’s father would still have the right to spend time with the child and be responsible for the child’s wellbeing.

Guardianship is made up of two elements: parenting time (time spent with a child) and parental responsibilities (making decisions on a child’s behalf, protection and care of a child). Generally speaking, a child’s parents are both guardians of the child, but in some cases just one parent or a person other than a parent is appointed guardian.

Major decisions include things like where a child lives or goes to school, extracurricular and educational decisions, religious belief, First Nations identity, applying for passports and other legal permits/licenses, and anything that will affect the child long term. Minor decisions include daily activities like what food a child eats, where they go on an outing, etc.

Agreements

When parents divorce or separate they should come up with an agreement for guardianship, often called a “parenting plan.” This is a plan that outlines exactly how much responsibility each guardian has pertaining to the child or children.

Both parties can have an equal share in all parenting decisions or certain types of decisions can be assigned to each parent. For example, one parent might take care of school-related decisions, while the other is in charge of routine healthcare appointments. It is up to individual families to come up with an agreement that works best for them and puts their child first. Your agreement can distribute the parenting responsibilities any way that you decide, as long as it ensures proper care of your child and both parents agree.

Once you have created an agreement, you should file it with the court registry so that it can be enforced at a later date if need be.

Mediation

If parents can’t come to a mutual agreement on a major decision pertaining to their child or on a parenting plan, they can seek mediation through the help of a legal professional. Your mediator will come to a decision based on what puts the child’s best interest first. The child’s physical, psychological, and emotional wellbeing is always the priority when the court makes a decision regarding guardianship.

Who Can Be a Guardian?

In some cases, one parent may be granted sole guardianship. For example if the other parent has a history of abuse, mental illness, addiction, or is otherwise deemed unfit, sole guardianship may be granted to the parent who is more fit to provide stable care.

Someone other than a parent can be named a guardian in a parent’s will. If a parent dies, the person named in their will takes on all guardianship responsibilities of the child. This is the only instance when a non-parent can become a guardian without going through a lengthy application process.

Anyone can apply to be a guardian. Approval of guardianship will be based on the applicant’s relationship to the child, proximity to the child’s current place of residence, other dependents in the prospective guardian’s care, as well as their criminal history, past or present mental illnesses, and childcare plan. Anyone applying to gain guardianship of a child will need to undergo multiple background checks to ensure the child’s safety.

Parents Who Are Not Guardians

A parent who has never lived with their child nor made efforts to build a positive relationship with them is unlikely to be considered a legal guardian. If a parent has a history of abuse, addiction, mental illness, or anything else that makes them unfit to care for a child, they may have their guardianship revoked.

In situations where both parents are unfit or unable to care for their child, a court will appoint an appropriate guardian for the child. This guardian is usually a relative such as a grandparent, aunt, or uncle, or someone else with a close relationship to the child and/or their parents.

A parent who is not a guardian does not have parental responsibilities but can still have contact with and access to their child.

Why Choose GK Thomas and Associates?

If you are dealing with a legal situation regarding guardianship of a child—whether you are applying for guardianship, wish to become the sole guardian of a child, or need help drafting a parenting agreement—GK Thomas and Associates has the experience necessary to make sure everything is done right, with your child’s best interests in mind. Our lawyers have 38 years of combined experience in family law, so you know you can trust us with something this important.

To learn more about your guardianship options, Contact Us!