Guardianship

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When a family lives together, the parents share guardianship, which is the responsibility for making major decisions about such things as what kind of education, health care, or religious training the children will receive, and how to manage anything the children may own, such as property or money. After separation or divorce, guardianship can be left in the hands of one parent, or shared between the parents.

Guardianship is not specifically discussed in the Divorce Act because it is considered part of custody under that act. A parent who has access under the Divorce Act also has the right to make inquiries and be given information about the health, education, and welfare of the child.

Guardianship is specifically discussed in part 2 of the Family Relations Act, although it is not defined in the act. Under the Family Relations Act, if parents separate, the parent with whom the children normally live is the sole guardian of the children, unless a court order or agreement is made stating otherwise.

Sometimes a guardianship order will be made without any order for custody. When that happens, the guardian of the child is considered to have custody. In most cases today, people apply for orders for both custody and guardianship to be very clear about their rights. In those cases, guardianship, separate from custody, generally refers to the right to make decisions regarding:

• the child's upbringing, and
• any property the child may own.

An example of the difference between a decision made under the heading of custody and one made under the heading of guardianship would be the difference between a decision to allow a child to attend a camp for a week where he or she will learn the French language and a decision to place a child in a French immersion elementary school program.

Guardianship can be shared even if the parents are not sharing custody. Joint guardianship allows the parents to continue making joint decisions about major long-term issues affecting their child's life, such as education, religious upbringing, and medical decisions. Joint guardianship also presumes that on the death of the other parent, the surviving parent becomes the sole guardian and may also be responsible for managing any inheritance belonging to the child until he or she reaches the age of majority.

Parents may agree or a court may order that guardianship be sole or joint between the parents, or on rare occasions, shared among the parents and another person, such as a grandparent.

Sometimes the order or agreement will define guardianship so there can be no doubt about each parent's responsibilities. To make the details clear, guardianship is often agreed to or ordered on the following terms, which are sometimes referred to as the “Master Joyce model”:

• The parents are to be the joint guardians of the estate of the child (any property the child owns).
• In the event of the death of either parent, the remaining parent will be the sole guardian of the person of the child.
• The custodial parent, who has the primary responsibility for the day-to-day care of the child, must inform the other parent of any significant matters affecting the child.
• The custodial parent must discuss with the other parent any significant decisions that have to be made about the child, including significant decisions about the health (except emergency decisions), education, religious instruction, and general welfare of the child.
• The parent who does not have custody must discuss these issues with the custodial parent and both parties must try to agree on those major decisions.
• If the two parties cannot agree about a major decision despite their best efforts, the custodial parent has the right to make the decision.
• The non-custodial parent has the right, under section 32 of the Family Relations Act, to ask for a review of any decision that he or she considers to be not in the best interests of the child.
• Each parent has the right to get information about the child directly from third parties, including teachers, counsellors, medical professionals, and third party caregivers.
  

If you want to make the details more specific, you might use the following terms, known as the "Master Horne model," in your order instead:

The plaintiff and defendant shall share joint guardianship of the child, with guardianship including the following rights:

• to be informed of the child's medical and dental practitioners;
• to contact the child's medical and dental practitioners and obtain the child's medical and dental records;
• to be consulted with respect to the selection of the child's alternative caregivers, such as daycare and preschool;
• to be consulted with respect to the selection of the child's schools and school programs;
• to consult with the child's alternative caregivers and teachers;
• to be informed of events at the child's school or daycare so they may attend;
• to be informed of parent/teacher nights so they may attend;
• to be consulted with respect to any significant health issues relating to the child; and
• to be consulted with respect to any significant change in the child's social environment.

Note: It is a good idea to get legal advice before making or changing a decision about guardianship.