May 16, 2014

Extraordinary Court of Appeal Decision: Rights of Guardianship May Survive Agreement for Sole Custody

British Columbia Birth Registration No. 2004-59-020158 (Re), 2014 BCCA 137 (CanLII)
The British Columbia Court of Appeal has released its decision in Re British Columbia Birth Registration No. 2004-59-020158, a fascinating case that has some very important implications for orders and agreements for sole custody made before the new Family Law Act came into effect on 18 March 2013. As usual, understanding the important point this case makes requires a bit of an explanation, however let me start with the facts.
In a nutshell, this case is about a mother's application for the adoption of her child by her new spouse and, because the father was none too happy with the idea, an order that the necessity of his agreement with the adoption be waived.
The mother and father separated in 2006 when their son was a year and a half old. A few months later they signed a separation agreement — this is important — giving the mother sole custody of the child and unspecified access to the father. This is what the agreement said:
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.
The Decision at Trial and a Parenthetical Comment on a Psychologist's Recommendation
The father, who had started a law suit in the Provincial Court for an order giving him specified access to his son, objected to the adoption application. As a result, the mother's claim went to trial, and her claim was heard together with the father's claim for access. The trial judge dismissed the mother's law suit and made an order that the father have access to the child; the trial judge decided that it was unnecessary to determine whether the father was a guardian of the child or not. The mother appealed the decision.
(I pause here to note that, at trial, a psychologist recommended that the mother's new spouse be allowed to adopt the child and that the father should have some limited access to the child. This was the psychologist's testimony:
"... 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:
"[31] 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. ...
"[33] 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.)
The Decision on Appeal
According to the judgment of the Court of Appeal, written by the province's Chief Justice, the mother's main argument on appeal was that the trial judge effectively ignored the child's best interests by dwelling on the mother's behaviour in "isolating the child" from contact with the father. However, the main issue for the court was the not the adoption claim, which it dismissed, but the question of the father's standing as a guardian of the child, and this is where the decision gets really interesting.
First of all, remember that the parties' agreement talked about custody and access but really didn't say anything about guardianship, even though that section of their agreement was titled "Custody, Access and Guardianship" and paragraph five said "all terms as to custody, access and guardianship may be varied by the written consent of both Parties." This agreement was made when the old Family Relations Act was the law of the province. Section 27 of that act set out certain presumptions about how guardianship was to be shared during and after the parents' relationship (important bits in bold):
(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,

(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.

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).
(Time for another diversion. "Guardianship" of a child has always — well, at least since 1660 — had two components, guardianship of the person of the child and guardianship of the estate of the child. Someone who is the guardian of the person of a child has the right to make decisions about where the child goes to school, how health care issues are managed, about the child's language and culture, how the child is disciplined, and so on; essentially, the guardian of the person of the child decides how the child is raised. Someone who is the guardian of the estate of a child is entitled to make decisions about how the child's property is managed, in the manner of a trustee of that property.)
This leads to the question of the parties' status under the new Family Law Act. Sections 251 and 252 are the main parts of the new act that translate orders and agreements made under the old act. Section 251, which applies here, says this:
(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

(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.
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.
This is what s. 25 of the Family Relations Act said about the rights involved in guardianship:
(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:
"[50] ... 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

(ii) identifying, advancing and protecting the child's legal and financial interests;
To this point, then, the Court of Appeal has reached these three conclusions:
· 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:
"[58] Section 251 is a transitional provision. It should not be lightly interpreted as taking away substantive vested rights. ...

"[59] ... 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

(b) ... terminate a person's guardianship of a child.
And in this case, the the court decided it should be taken away:
"[60] 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.
This decision is enormously important, because I expect that many formerly married parents who had agreements and orders that just talked about sole custody and access probably read s. 251 as meaning that the parent with sole custody became the child's only guardian under the Family Law Act. The Court of Appeal has made it clear that such orders do not disturb the other parent's standing under s. 27 of the Family Relations Act as a guardian of the estate of the child, and that as a result of this standing, the other parent continues as a guardian under the Family Law Act, albeit as a guardian whose only parental responsibility is that found at s. 41(k).
The effect of continuing as a guardian under the Family Law Act is profound, for the following reasons.
· 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.
However, some caution may perhaps be warranted. In my view, the scheme of the new act splits up the traditional concepts of "guardianship of the person of the child" and "guardianship of the estate of the child." Normally, when an agreement or order under the old act gave someone "guardianship," he or she had both kinds of guardianship, unless the agreement or order expressly said something different. Under the new act, however, it seems to me that a "guardian" is really a guardian only of the person of the child.
Part 8 of the new act is titled "Children's Property," and deals with a person's rights and duties about children's property that are essentially the rights and duties of someone who is the guardian of the estate of the child. This is what s. 176 says:
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

(b) entitled to give a valid discharge on receiving property on behalf of the child.
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.
As a result of Part 8 of the new act, it is not clear to me that someone who is the guardian of the estate of a child is necessarily a guardian with the power to exercise parental responsibilities. Without a doubt, the powers set out at s. 41 are rights that stem from a person's standing as guardianship of the person of a child, but the power of guardianship over children's estates is not a part of those rights and doesn't result merely from being the child's guardian. Part 8 provides a complete and separate code for the management of children's property that is not, or is scarcely, impinged upon by the parental responsibility of "identifying, advancing and protecting" the child's "financial interests" under s. 41(k)(ii).
My thanks to my colleague, James Cudmore, for bringing this important case to my attention.