In a recent B.C. Supreme Court decision under the Family Law Act, the issue of when it was appropriate to strip a parent of guardianship was brought to the fore in an appeal from a Provincial Court decision. In 2014 BCSC 1635, the Honourable Mr. Justice noted the following principles:
- Citing from D. v. D., 2013 BCPC 135, a decision of the Honourable Judge Merrick, a court should consider whether any reallocation of parenting responsibilities can reduce whatever risks or problems are presently mitigating against continued guardianship. This case, which involved family violence, did not strip the other parent of guardianship. Termination of guardianship should only occur in the most extreme situations.
- This can include total reallocation of all parenting responsibilities.
- While the courts are careful to avoid using the term “presumption,” in another case, 2013 BCPC 114, the Honourable Judge Hamilton observed that birth parents who have raised the child together are “on a more equal footing than they have been in the past.”
The Provincial Court decision stripping the father, a drug addict, of guardianship rights was accordingly found to have been made in error and was overturned. A lot of clients come in to family lawyers and they want sole guardianship. The reality is, as is this case illustrates, that this is very, very hard. It had been getting progressively harder under the Family Relations Act and is even more difficult under the Family Law Act. It is a battle that will be hard to win, and if you believe that this is an avenue you wish to pursue, particularly in Supreme Court where costs can be awarded against you if you lose, you may wish to consult with a lawyer about how to frame your arguments or what steps you might be able to take. Likewise, if you find yourself on the receiving end of an application to remove you as a guardian, a lawyer may be able to provide some peace of mind for you as you face that potentially terrifying prospect.
For further information about parental guardianship, contact one of our Family Law lawyers.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.