In a recent trial, our client sought joint guardianship and increase access to his child. The opposing evidence was that the parties did not reside together. Our client’s evidence was that he would come and go from Northern B.C., but that they were residing together. In addition to, and more importantly in this situation, we argued that irrespective of the residence issue, our client had regularly cared for the child since the child’s birth, making our client a guardian pursuant to the Family Law Act.
Section 39 of the Family Law Act, states:
Parents are generally guardians
39 (1) While a child’s parents are living together and after the child’s parents separate, each parent of the child is the child’s guardian.
(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child’s guardian.
(3) A parent who has never resided with his or her child is not the child’s guardian unless one of the following applies:
(a) section 30 [parentage if other arrangement] applies and the person is a parent under that section;
(b) the parent and all of the child’s guardians make an agreement providing that the parent is also a guardian;
(c) the parent regularly cares for the child.
(4) If a child’s guardian and a person who is not the child’s guardian marry or enter into a marriage-like relationship, the person does not become a guardian of that child by reason only of the marriage or marriage-like relationship.
We presented options to the Court to either order that our client is a guardian by operation of Section 39 of the Family Law Act or to declare/appoint our client as a guardian of the child pursuant to section 51 of the Family Law Act.
Here, the opposing party argued that our client did not regularly care for the child. We argued that he did and that the opposing party actively denied him from regularly caring for the child. By this I mean, she would not permit him overnight visits or visits over consecutive days. The opposing party would only permit limited time, including not allowing him to pick up the child from daycare.
The Court ultimately agreed with our submission, and the client was named a joint guardian, with shared parental responsibilities, and a significant increase in consecutive overnight visits over the next six months allowing him to take his child to his home in Northern, BC.
The client was ecstatic as his position was that he had been denied a meaningful relationship with his child over a two year period.
In family law matters, it is important to understand the importance of guardianship and the orders that can be made based on the facts.
If you have questions about guardianship speak to a Family Law lawyers. Contact us at 604 888 5811.
Family Law and Litigation
Lindsay Kenney LLP – Langley Law Office