Safety of the Child – Legal Guardianship Decisions

Family Law

There have been a number of cases in the Provincial Court and the Supreme Court that have considered the concept of guardianship under the Family Law Act, the test for termination, and the relationship between guardianship and parenting responsibilities. In D. v. D., 2013 BCPC 135, Judge Merrick said that it will rarely be in a child’s best interests to terminate guardianship and thereby turn a parent from a guardian into a person with contact. Where there are concerns about one guardian’s parenting capacity, the court should first consider whether a reallocation of parenting responsibilities can eliminate any risk to the child’s best interests arising from the parent’s continued guardianship. If so, the court should refuse to terminate. This approach allows the child to safely retain the benefit of a meaningful and significant relationship with their parent. Judge Merrick said this:

 24 When considering an application to terminate a parent’s guardianship, I am of the view that considering the factors enumerated in s. 37(2) of the Family Law Act, termination can only occur in the most extreme situations. The approach to be taken is, first, to ask whether, through an allocation of parenting responsibilities, it continues to be in the best interests of the children that the parent remain a guardian. If it is, guardianship should not be terminated. It must be remembered that once a parent is no longer a guardian, that parent loses all parenting responsibilities and rights and is simply an adult who may have contact with the children.

25 In my view, it will be rare when that is in the child’s, or in this case, the children’s best interests.

26 By first determining whether a parent guardian can remain a guardian by allocating or reallocating parenting responsibilities, parents will have the maximum opportunity to remain a significant part of the child’s life.

In D. v. D. there were serious concerns about the father’s parenting capacity and abilities — he had committed more than one act of family violence — but he also had a strong bond with the children, who wished to continue to have a “meaningful relationship” with him. Judge Merrick concluded that a severe restriction of the father’s parenting responsibilities would be sufficient to address these concerns. In that case, the reallocation of responsibilities was so extreme that the father only retained the right to receive information respecting the children’s health, education and welfare. All parenting time was supervised and the father was prohibited from exercising even the responsibility over day-to-day decision-making during his parenting time. The British Columbia Supreme Court has commented favourably on the approach set out in D. v. D. In M.A.G. v. P.L.M., 2014 BCSC 126, Madam Justice Fleming cited the case with approval, referring to it as “persuasive authority” and summing up the decision as follows:

44 … The thrust of the decision is that by allocating or reallocating parental responsibilities to a more capable parent as opposed to terminating guardianship, a child may safely retain the benefit of having a parent remain a significant part of his or her life.

Applying that approach, she refused to terminate the father’s guardianship, instead allocating the majority of responsibilities to the mother (including day-to-day care decisions even when the children had parenting time with the father, at least so long as the father’s parenting time was supervised).

If you have a family law matter, please contact one of our lawyers in the Family Law  practice group.