Guardianship is a concept developed in the common law as long ago as the seventeeth century which described the rights and responsibilities people other than parents had towards the children in their care, including, among other things, the duty to feed and clothe those children, the responsibility of seeing to their education, and the authority to discipline them and determine the manner of their health care. Guardianship, in other words, was originally about the kind of parenting authority exercised by people who weren't parents.

As far as the legislation is concerned, only the provincial Family Relations Act deals with the question of guardianship; the federal Divorce Act is silent on the matter, although guardianship is presumed to be a part custody orders made under the Divorce Act. The problem with this arrangement is that, under the Family Relations Act, parents as well as non-parents can apply for guardianship, and this makes it very difficult to pinpoint the exact difference between custody and guardianship.

Guardianship is perhaps easiest to think of as parenting. It is the right to play a full and active role in a child's life, including directing the moral, religious and social education of the child, and being involved in the child's formal schooling, health care, social environment and sports and recreational activities.

Guardianship of the Person of a Child

Guardianship includes guardianship of both "the person of the child," meaning the care and control of the child, and "the estate of the child," meaning the management of the child's assets.

A person with guardianship of "the person of the child" has the same authority as a parent with the care and control of a child, and all of the same duties and obligations. A person with guardianship of the person of a child is under a duty to always act in the child's best interests and has:

1. the right to get information from and give instructions to the people involved in a child's life, like teachers, doctors, dentists and therapists;
2. the right to disclipline the child and direct his or her health care and religious instruction; and,
3. the general authority to direct the course of the child's life, including selecting the child's education and extracurricular activities.

Guardianship of the Estate of a Child

A child's "estate" is the child's property. While most children don't have a lot of property, they might have a bank account, or, if the child is fortunate, some sort of inheritance or other property or assets held in trust for the child's future benefit.

A person with guardianship of "the estate of a child" has all the duties of a legal trustee with respect to the child's property, including the duty to manage the child's property properly and protect it from harm or loss. A guardian has the authority to deal with the child's property and apply the income from the property for the benefit of the child or the child's estate.

Whatever a guardian does with a child's property must be done for the benefit of the child and cannot benefit the trustee personally.

The Legislation

Under s. 6 of the Family Relations Act, both the Provincial (Family) Court and the Supreme Court have jurisdiction over claims for guardianship. Section 25 states that "a guardian is both guardian of the person of the child and guardian of the estate of the child." Section 27(1) of the act states that the natural parents of a child, whether married or not, are presumed to be the joint guardians of the child.

Although the Divorce Act doesn't talk about guardianship, custody orders made given under that act are presumed to include guardianship. Section 27(4) of the Family Relations Act states that when a custody order is made under the federal Divorce Act, the person granted custody is automatically the guardian of the child.

Section 27 of the Family Relations Act deals with the consequences of separation on guardianship, and applies to situations where the parents were never together in the first place:

This section is unpleasantly complex, but essentially boils down to this.

• Parents who live together, whether married or unmarried, are presumed to be their child's joint guardians.
• Parents who were married but have separated are presumed to be joint guardians of their child's estate, but the parent with whom the child mostly lives with is presumed to be the sole guardian of the child's person.
• Parents who are unmarried and who used to live together but have separated are presumed to be joint guardians of their child's estate, but the parent with whom the child mostly lives with is presumed to be the sole guardian of the child's person.
• The mother is presumed to be the child's sole guardian if the parents were never married and never lived together, and the child lives with the mother.

Who is a Guardian

Parents are presumed to be the joint guardians of their children while they are together. This can be changed in a few circumstances.

• The parents can agree that only one of them shall be their children's guardian.
• The parents can put a guardianship clause into a family agreement.
• A parent can appoint a guardian in his or her will.
• Where a parent has sole custody pursuant to a court order and the order makes no direction as to guardianship, that person is considered to be the child's guardian.
• The court may appoint a guardian, or, where there are no parents or the parents have abandoned the child, the provincal Public Guardian and Trustee becomes the guardian of the child.
• The court may appoint a guardian if the Ministry for Children and Family Development has concerns about the child's welfare.
• When one parent dies, the surviving parent assumes guardianship of the child where there is no order or will to the contrary.

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There are two basic types of arrangement available when dealing with guardianship: sole guardianship and joint guardianship. Parallel parenting, a type of joint guardianship which divides parenting responsibilities between parents, is discussed in the first chapter in this section.

Whether the court will choose sole guardianship over joint guardianship depends on the particular circumstances of each case, the relationship between the parents and the parents' capacity to make appropriate decisions for their children. Orders for joint guardianship, however, are rather commonplace and there is an unwritten presumption that parents ought to share joint guardianship unless there is a very good reason why they should not.

Sole Guardianship

A parent has sole guardianship, that parent has control over all aspects of raising the child to the exclusion of the other parent. The parent without guardianship has no entitlement to obtain information from the children's teachers or doctors and no authority to give them instructions.

As the effect of sole guardianship is to strip one parent of his or her role in the raising of his or her children, orders or agreements for sole guardianship are the exception rather than the rule. When these sorts of orders or agreements are made, the personal circumstances of the parties are usually fairly extreme or one parent has proven him- or herself to be obviously disinterested or incapable of proper parenting.

Joint Guardianship

In a situation of joint guardianship, the parties share in the rights and responsibilities associated with raising their children. Parents can have joint guardianship of a child even though one of the parents has sole custody of the child.

The courts will generally allow joint guardianship even where the parties' relationship is strained and they have difficulty communicating with one another. Joint guardianship may also be ordered as a remedy where there is a concern that one parent will fail to keep the other parent informed and involved in the children's lives.

Most orders and agreements usually require that each party make their best efforts in coming to a resolution of their dispute before the parent with primary residence is allowed to make that final decision. Where the parent without the children's primary residence disagrees with the other parent's decision, that parent is entitled to bring an application to court for a review of that decision under s. 32 of the Family Relations Act.

Ordinarily an order or agreement for joint guardianship will spell out the parties' duties towards each other and their children in a fair amount of detail, although some orders and agreements simply say "the parties will share joint guardianship" without elaboration.

The "Joyce Model" of Joint Guardianship

The most common terms of joint guardianship follow what is known as the "Joyce model" or the "Joyce clauses." Mr. Justice Joyce developed these terms as a standard guide for parents who share joint guardianship of their child to help them understand and live up to the rights and obligations that joint guardianship involves. Although designed for court orders, the Joyce model is frequently incorporated into separation agreements which deal with children.

Note that the Joyce model is just that, a model. It need not be slavishly adhered to, as some of the terms of the model aren't appropriate for all parents, while other parents might want additional terms, as might be the case if only one parent was going to make health care decisions or neither parent was to have final decision-making authority.

The "Charlton Model" of Joint Guardianship

The Charlton model comes from a decision of Mr. Justice Garner in Charlton v. Charlton, a 1980 case of the BC Supreme Court. The Charlton model is probably the least used model of joint guardianship, but it does pop up in the case law from time to time, particularly when the court thinks it important to emphasize the cooperative nature of parenting after separation.

Just like the Joyce model, the Charlton model is also just a model which needn't be slavishly adhered to. It can be adjusted from time to time as circumstances warrant.

The "Horn Model" of Joint Guardianship

The Horn model is very similar to the Joyce model, with two important exceptions: there is no clause giving one parent final decision-making authority; and, guardianship is described primarily in terms of a parent's right to get information about the child and participate in decision-making.

This model describes guardianship in terms of the rights of the parent who does not have the primary residence of the child, rather than the cooperative, joint parenting effort contemplated by the Joyce model; there is a subtle but important distinction in the entitlements included in a right to be "consulted" and in an obligation to "discuss."

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The guardian of a child has the responsibility of looking after the child's interests and needs, including the child's social, economic, health and educational interests; and, the guardian acts on behalf of the child while the child is under the age of majority. Guardianship is therefore a kind of trusteeship and a guardian may resign his or her position, or the position can be taken away. A guardian is usually only removed by an order of the court, with the guardian's agreement, or by the child becoming an adult at the age of majority.

Under the provincial Infants Act, a guardian can pass on his or her position in a will, so that, in the event of the guardian's death, someone else will take over the position. The same applies to parents who are still together; their wills can specify who will be their children's guardians if they happen to both die.

This can raise a bit of a problem when one parent has guardianship and the other one doesn't. These are the general rules:

• If parent A and parent B are joint guardians, the death of one will not affect the guardianship rights of the other, and the surviving parent will become the child's sole guardian.
• If parent A had guardianship and parent B doesn't, B will not automatically "inherit" guardianship of the child when A dies. Parent A can name parent B or someone else as the child's guardian in his or her will, and guardianship will pass to that person.
• If parent A had sole guardianship and left guardianship to someone else, B can apply to court to obtain guardianship.

In general, a parent who does not have guardianship will not gain guardianship on the death of the other parent without a court order to the contrary.

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