If you are or were married with children, then you can request guardianship of your child(ren) under Divorce Act Canada.
If you are or were in a common law relation or married, then you can request parental responsibilities for your child(ren) under the BC Family Law Act.
Guardianship and Parental Responsibilities are essentially same thing; but they have different names depending on which Act you want to follow.
What is Guardianship or Parental Responsibilities?
Basically they mean making decisions for your children. These include day to day decisions or major decisions.
Under the BC Family Law Act, the parent who is caring for the child usually has the right to make day to day decisions for the child. That same parent, also has a say in major decisions of the child. These include:
- making decisions respecting where the child will reside;
- making decisions respecting with whom the child will live and associate;
- making decisions respecting the child’s education and participation in extracurricular activities, including the nature, extent and location;
- making decisions respecting the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child’s aboriginal identity;
- Giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
- applying for a passport, licence, permit, benefit, privilege or other thing for the child;
- giving, refusing or withdrawing consent for the child, if consent is required;
- receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
- requesting and receiving from third parties health, education or other information respecting the child;
- subject to any applicable provincial legislation,
- starting, defending, compromising or settling any proceeding relating to the child,
- identifying, advancing and protecting the child’s legal and financial interests, and
- exercising any other responsibilities reasonably necessary to nurture the child’s development.
What Happens When the Parents Disagree Over a Major Decision for the Child?
Parents should first consult with one another regarding any major decisions for the child.
In case of disagreement:
- If there are no agreements or court Orders regarding who gets the final say, the parents should apply to the Court or mediate the issue for final determination.
- If there is an agreement or a court Order giving one parent the last say, then that parent will make the decision but the other parent has the right to apply to the Court to have that decision reviewed and possibly set aside.
All decision must be made in the best interests of the child. If they are not, the Court has the right to set them aside.
In our line of practice, usually the most contentious issues on guardianship or parental responsibilities revolve around:
- The school the child should attend
- Where the child should reside; and
- Religious upbringings of the child.
Each of these decisions can have lasting and long term impact of the child. So we sometimes find ourselves in Court trying to ensure all decisions are made in her/his best interest. Each issue has a specific legal test that needs to be applied and this area of law can be complicated.
Get in touch to find out more from our experienced lawyers.