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  • Sea to Sky Law

Guardianship


I worked a family law trial of over 40 court appearances over two years. The main issue was about Guardianship under the BC 2013 Family Law Act because if you are not a Guardian then you cannot have Parenting Responsibilities etc; you are limited to Contact time.


If parents do not live together with their child before they separate then they are not both presumed Guardians under s39(1). The question was a common one - whether the actions of the father fit within the s39(3)(c) presumption that he was a Guardian because he regularly cared for the child. As usual the mother is a Guardian because she has had primary care since birth but like many biological fathers who only dated the mother, there is a serious question if the casual relationship should be forced into a permanent relationship of co-parenting as co-Guardians.


The father applied to be presumed a Guardian under FLA s39, or appointed under s51, asserting that it was unfair and unconstitutional that men are not also presumed to be Guardians just by being the biological father - that he had rights as the biological father. The reader can think of many circumstances where the father is regularly caring for the child but what of other conduct less than ideal - should all biological dads be deemed Guardians? The SCC said almost 40 years ago in Racine v Woods (1983) that children are not property. FLA s.37(3) says the best interests of a child must be protected to the greatest possible extent.


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