In a recently-released decision, Mr. Justice Crawford of the Supreme Court
appears to have crafted the first model guardianship order under the new Family Law Act
. In the case of G.P. v. M.J.R.P.
, a rather toxic case featuring a mother described as "an outgoing, volatile, aggressive and sometimes bellicose character," the court was asked to change a Family Relations Act
order which gave custody to the father and joint guardianship, on the Joyce model, to both parties.
Mr. Justice Crawford observed that both parties were now the guardians of the child as a result of the transitional provisions of the Family Law Act
at s. 251, and that the new act focuses on "the parents' 'parenting'." The mother's parenting capacity having improved, but the conflict between the parties persisting, His Lordship directed an approach to parental responsibilities allocating some to the father alone and adopting a modified version of the Joyce model with respect to the others, and required the parties to use this form of order (terms specific to the parties removed):
UPON THE COURT being advised that the name and birth date of each child is as follows:
Name, born on date, andName, born on date
AND UPON being satisfied that name of party and name of party are the guardians (the "Guardians") of the Child(ren) under s.39(1)/s. 39(3) of the Family Law Act;
THIS COURT ORDERS THAT:
1. Party shall have primary responsibility for parental responsibility and shall terms of primary responsibility, such as a requirement to consult the other party or to advise the other party.
2. Both Guardians may request and receive from third parties health, education or other information respecting the Children.
3. During a Guardian’s parenting time, that Guardian may exercise the parental responsibility of making day-to-day decisions affecting the Child(ren) provided however that such Guardian must advise the other Guardian(s) of any matters of a significant nature affecting the Child(ren) occurring during his/her parenting time.
4. Each Guardian will consult the other Guardian(s) about any important decisions that must be made in respect of the Child(ren) and will try to reach agreement concerning these important decisions.
5. In the event the Guardians cannot reach agreement with respect to any major decision despite their best efforts, party will have final decision-making power, provided however that the other Guardian(s) may seek mediation or, under s. 49 of the Family Law Act, seek a review of any such decision if he/she believes that such decision is contrary to the best interests of the Child(ren).
To break this down somewhat, the highlights of this model are:
- a declaration that each party is a guardian of the children;
- an order allowing each party to obtain information about the children from third parties;
- an order confirming the parties' right to make day-to-day decisions about the children during their parenting time, as is provided by s. 42(2) of the act;
- an order imposing a reciprocal obligation to attempt to reach an agreement on decisions; and,
- an order giving one party decision-making authority in the event of an impasse, while allowing the other party to right to either compel a course of mediation or apply to court for directions on the decision.
The declaration about the parties' status as guardians is particularly important as, in my view, such declarations are the only practical way to let doctors, teachers and border guards know that a particular individual is the guardian of a child when he or she is not appointed by court order.
I have provided templates for the Joyce and Horn models of guardianship adapted for joint custody under the Divorce Act
and shared parental responsibilities under the Family Law Act
in the blog of Courthouse Libraries BC
My thanks to my friend and colleague Agnes Huang for letting me know about this interesting decision.