British Columbia Family Law Blog

1. P.B. v. H.R. [2000] B.C.J. No. 313 (BCSC) – mother granted sole custody in circumstances where father was an alcoholic who consumed alcohol in the presence of the children, permitted the use of illicit drugs in his home and was inclined to associate with unsavory persons such as drug users and prostitutes.  The father was granted supervised access.  The court refused to award joint guardianship because there was no way to predict when the father would resume drinking, at which time the mother would not be able to properly communicate with him, and there was a risk he would impose his rights as guardian when his judgment or ability to do so was impaired.

2. In Peterson v. Williamson [1996] B.C.J. No. 706 (B.C.S.C.), a access father sought joint guardianship and was denied. The Court found that the father had not always acted in the best interests of the Child, such as failing to ensure that the Child’s health needs were attended to while the Child was in his care with respect to an irritable bowel condition. The Court held at paragraph 9 of the decision that:

In the circumstances of this case, I am of the view that to make an order for joint guardianship, similar indicia should exist that would permit the court to make an order for joint guardianship.  In this case, the parties have not been able to communicate effectively without resort to the courts.  The court must ask itself - should different considerations apply to an award of joint guardianship?  In the often quoted case of Anson v. Anson 10 B.C.L.R. (2d) 357, the court had to deal with an appeal from a decision of a Provincial Court judge who had determined that both parties were excellent parents and made them joint guardians of the child of the marriage, with sole custody to the mother.  The court concluded that the Provincial Court judge had erred in his interpretation of guardianship and custody and allowed an appeal varying the order of the Provincial Court judge to provide for joint custody with the child\'s primary residence to remain with the mother.  In that case the court was dealing with parties who were found to be excellent parents and who were also found to have no communication problems with respect to one another regarding the upbringing of the child.

3. The Court then went on to cite from Anson, supra at paragraph 10 of the decision:

At page 361 of that decision, the court said:

Today guardianship is regarded generally as the full bundle of rights and duties voluntarily assumed by an adult regarding an infant akin to those naturally arising from parenthood:  Hewer v. Bryant, [1970] 1 Q.B. 357, [1969] 3 W.L.R. 425, [1969] 3 All E.R. 578 (C.A.), Law Reform Commission of British Columbia, Report on the Authority of a Guardian (1985), at p.3.  That seems to be the effect of s. 25 of the Family Relations Act.  See Matthew v. Brise (1851), 14 Beav. 341 at 345, 51 E.R. 317.  The Tenures Abolition Act, 1660, had made guardianship an office of trust and responsibility rather than one of profit.  By 19th May 1917, in England a guardian, like a parent, had the general power and duty to raise a child in a manner befitting the child\'s position and expectations.  Guardianship implies the voluntary assumption of a duty to maintain, protect and educate the ward.  It includes the power to correct, to grant or withhold consent to marriages and, if the guardian is also the parent, to delegate parental authority.  It does not require the guardian to spend personal funds on the ward.  That obligation is purely statutory and falls on a guardian in this province because a \"parent\" includes a guardian or guardian of the person of the child for the purposes of the Family Relations Act.

And, further on page 362:
Generally speaking, however, these statutory provisions do not detract from the general principle that the guardian or guardians of a child have the full bundle of rights and responsibilities relating to a child.  Thus, subject only to specific statutory restrictions or to limits imposed by a court, the guardian of the estate of a child has the full bundle of parental rights and duties regarding the child\'s property and the guardian of the person has the full bundle of parental personal rights, including necessarily the entitlement to physical possession of the child.  If a child has more than one guardian and those guardians cannot agree, either guardian can seek directions from the court as to the proper exercise of the guardians\' rights or as to the means of fulfilling the guardians\' duties in the best interests of the child.

At page 366, the court said:

Thus I am satisfied that custody under the Family Relations Act must be considered as being almost the equivalent of guardianship of the person.  It includes the right to determine the child\'s education, health care and religion, as well as physical control over the child unless that is separated as it was in Fontaine v. Fontaine, supra, Jussa v. Jussa, supra.  Essentially, the custodian has the full bundle of rights over the person of the child that are not reserved to the guardian of the person or some other person or institution by statute or by court order.  This is the meaning inherent in Charlton v. Charlton (1980), 19 B.C.L.R. 42, 15 R.F.L. (2d) 220 (S.C.).

4. The Court in Peterson, supra held at paragraph 19 that:

The defendant, as part of his access privileges, shall be consulted by the plaintiff with respect to planning the religious upbringing, educational programs, athletic and recreational activities, health care (excluding emergency health care) as well as significant changes in the social environment of the said child.  The defendant shall be kept informed of the child\'s progress in school and shall be provided with report cards and have the ability to access school records and teachers.  The defendant shall also be entitled to access hospital and clinical records relating to the child including dental records, and shall have the right to access treating physicians and treating dentists.  Should the child become involved in scheduled athletic events, the plaintiff shall provide, on request, by the defendant, copies of appropriate game or event schedules.

5. The Plaintiff is proposing that the same be awarded in the present case. He is prepared to keep the Defendant informed and allow her to contact all relevant third parties for information, however in the circumstances she should not be accorded a decision making right.

6. In B.K.S. v. L.S.S. 2004 BCSC 927, the Court held at paragraph 40 of the decision that it was not appropriate to award joint guardianship in circumstances where the access parent’s involvement with the Child had been limited and where the access parent’s evidence did not support their assertion of desire to take a meaningful role in the Child’s life.

7. In Emanuele v. Emanuele 2004 BCSC 496, the Court refused to grant joint guardianship where the access parent had a somewhat estranged relationship with the Child. In particular, the Court held that with respect to the issue of survivorship, that issue was better dealt with at the relevant time should such a time arise rather than to pre-determine it where there was concern still present. The Court further held at paragraph 29 that “As a matter of law, unless otherwise stated, custody includes guardianship.”