RELATED CASES AND POSTS
CUSTODY, ACCESS AND GUARDIANSHIP
2. [The mother] will have custody of [the child].
3. [The father] will have reasonable access to [the child].
4. If [the father] and [the mother] are at any time unable to agree on the particulars of access or on a variation of access, either may apply to a court of competent jurisdiction for directions.
5. All terms as to custody, access and guardianship may be varied by the written consent of both Parties duly witnessed and signed as an Amendment to this Agreement.Although the father initially saw his son almost every weekend, the frequency of his visits began to decrease after the mother started a new relationship. The mother and father divorced in 2010, and around the same time, the mother and her new partner took the child and moved out of town. The father was not told of the move and had no idea where his son was living until litigation ensued. The mother married her partner in 2011, and the couple started a law suit in the Supreme Court seeking an order that he adopt the child and a decision as to whether the father remained a guardian of the child after the parties' signed their separation agreement.
"... in the report [I prepared] I actually make the point that perhaps there could be an agreement almost quid pro quo that if [the father] would allow the adoption, then there would be a reciprocal cooperation on the part of [the mother] to facilitate this type of arrangement to take place. ... I was hoping that — that by saying that there would be a reciprocity where [the father] would agree on adoption in exchange for [the mother] promising to — to allow and facilitate and arrangement that would allow [the child] to know [the father] and the paternal family, that — that if there was that reciprocal agreement, that it would make sense that — that — because what he wants is — meaning [the father] — what he wants is he wants to be a part of the child's life, he wants to have some input, he wants the child to know him, and he wants to know the child. But if — if in exchange for that, he gave up the ability and allowed them to adopt, then perhaps we could — you know, there might have been some — some agreement in that regard ..."In other words, the psychologist was recommending that the father should give up his status as the child's father, and the rights that go along with that status, in exchange for contact with the child. This recommendation trespasses upon the offensive; the father had a right to seek contact with the child merely because of his status as the child's father, and he is now being asked to give up that status to obtain the access he ought to have had in any event? The Court of Appeal shared my concern:
" Frankly, this notion of [the father] consenting to the adoption in consideration for future contact rights is troubling. I do not view a natural parent’s interest in consenting or not to the adoption of their child as something that should be required to be bartered away for the right to be peripherally involved in the child’s future. Yet that is what [the mother] was proposing and it is precisely what [the psychologist] was effectively recommending. ...
" With respect, it is inappropriate to effectively require (or even to simply encourage) [the father] to give up his parental ties to the child as the price for gaining [the mother's] 'co-operation' in facilitating his future contact with the child, to which, prima facie, he is entitled at law."Let me climb off my high horse and return to the main topic. I apologize for the long-winded diversion.)
(1) ... whether or not married to each other and for so long as they live together, the mother and father of a child are joint guardians unless a tribunal of competent jurisdiction otherwise orders.
(2) ... if the father and mother of a child are or have been married to each other and are living separate and apart,
Since the parties' agreement didn't make any decisions about guardianship, this meant, according to both the trial judge and the Court of Appeal, that the father continued to be a guardian of the estate of the child, under s. 27(2)(a). Of course, since the agreement gave custody to the mother, she had "care and control of the child" and was therefore the guardian of the person of the child under s. 27(2)(b).(a) they are joint guardians of the estate of the child, and(b) the one of them who usually has care and control of the child is sole guardian of the person of the child unless a tribunal of competent jurisdiction otherwise orders.
(1) If an agreement or order, made before the coming into force of this section, provides a party with(a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities and parenting time with respect to the child under this Act, or
The parties' agreement gave the mother custody; she is clearly a guardian of the child. The court considered the father's status by comparing the rights of a guardian of the estate of a child under the old Family Relations Act to the rights of a "guardian" under the new Family Law Act.(b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act.(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are as described in the agreement or order respecting custody, guardianship and access.
(2) Subject to this Act, a guardian of the estate of a child has all powers over the estate of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second, chapter 24, and 49 and 50 Victoria, chapter 27, section 4.Frequent readers will recall that these two acts are the UK Tenures Abolition Act of 1660 and the Guardianship of Infants Act of 1887. (I talk about these acts in my post "Supreme Court Releases Important Decision on Paramountcy Problem between Divorce Act and Family Law Act" and in some of my other writing on this issue.) After considering an amendment to this part of the Family Relations Act that never came into effect, the court concluded that the rights involved in being a guardian of the estate are similar to those of a trustee:
" ... Equating the guardian of the estate with a trustee of the child’s property recognizes the obligation of a guardian of the estate to protect and manage the child’s property for the benefit of the child and the right of the guardian of the estate to control the child’s property to that end."The decisions guardians can make under the new act are "parental responsibilities," and are listed at s. 41. Of all of those parental responsibilities, the court held that the rights of a guardian of the estate of a child were most similar to those found at s-s. (k):
(k) subject to any applicable provincial legislation,(i) starting, defending, compromising or settling any proceeding relating to the child, and
To this point, then, the Court of Appeal has reached these three conclusions:(ii) identifying, advancing and protecting the child's legal and financial interests;
· If you were married and have an agreement — or, by extension, an order — that gives the other parent sole custody but doesn't say anything about guardianship, you are a guardian of the estate of the child under s. 27(2)(a) of the Family Relations Act.
· As the guardian of the estate of the child, you are a trustee of the child's property and must "protect and manage the child’s property for the benefit of the child," and you have the right "to control the child's property" for that purpose.
· These rights and duties are the same as having the parental responsibility, under s. 41(k) of the Family Law Act, for handling legal proceedings on behalf of the child and protecting the child's financial interests.Now we need to get back to the translation provisions of s. 251. The parties had an agreement giving the mother sole custody, but the agreement didn't decide anything about guardianship. This is what the court said about the intention of s. 251 and its effect on the rights distributed by the parties' agreement:
" Section 251 is a transitional provision. It should not be lightly interpreted as taking away substantive vested rights. ...
" ... did the separation agreement, properly construed, take away [the father's] then vested (under s. 27 of the FLA) right to guardianship of the estate of the child? I think not. In my view, one should interpret the separation agreement, by referring to guardianship without more, as implicitly continuing the guardianship regime then in place which afforded joint guardianship to [the mother] and [the father] of the estate of the child. Section 251 does not affect this status."And now we can add a fourth point to the court's conclusions:
· If you are guardian of the estate of a child, as a result of an old agreement or order, you are a guardian under the Family Law Act, with the parental responsibility set out at s. 41(k), and other parental responsibilities under s-ss. (h), (i) and (j) as may be necessary for you to act under s-s. (k).However, whether you're a guardian as a result of an old agreement or order under s. 251 or because you're one of the people who are presumed to be guardians under s. 39 of the new act, your standing can also be taken away under s. 51, which says this:
(1) On application, a court may(a) appoint a person as a child's guardian, or
And in this case, the the court decided it should be taken away:(b) ... terminate a person's guardianship of a child.
" In my view, it would not be in the best interests of the child in all the circumstances to grant [the father] parental rights under s. 41(h), (i), (j) and (k) of the FLA."At the end of the day, the result from the Court of Appeal was that the mother's application for the adoption of the child by her new spouse was refused. The father's standing as a guardian was terminated — although the court didn't quite put it that way, which is curious — and the order from trial giving the father contact with the child was continued, but on terms which included requiring the mother and her spouse to keep the father informed of certain decisions they might make in respect of the child.
· Only guardians have parental responsibilities under the act. (s. 40(1))
· As a guardian, you have parenting time with the child, not contact. Someone with parenting time also has "the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child." (s. 42(2))
· Only a guardian can apply to court for "directions respecting an issue affecting the child." (s. 49)
· Only a guardian can object to another guardian's plans to move with the child, or apply for an order that the move be prevented. (ss. 68, 69(2))Nothing in the Family Law Act restricts these rights because a guardian has a limited range of parental responsibilities. These rights are available simply because of the person's standing as a guardian.
Except as set out in section 178 [delivery of small property], a child's guardian is not, by reason only of being a guardian,(a) a trustee of the child's property, or
If the child's property is worth more than than $10,000 — the value of "small property," set out at s. 24 of the Family Law Act Regulation — a guardian is not automatically the trustee of the child's property. The trustee, whether a guardian, a parent or someone else, must be appointed by court order under s. 179; the child's guardians cannot make an agreement that someone will be the trustee of the child's property, the appointment can only be by court order.(b) entitled to give a valid discharge on receiving property on behalf of the child.