Guardianship
Guardianship lawyer in Surrey, BC
A guardian is the person with legal responsibility for a child, holding parenting time and decision making responsibility under the Family Law Act. Parents who lived with the child after birth are usually guardians automatically, but a parent who never lived with the child is not, and neither is a grandparent, step parent or other relative.
We handle guardianship applications for parents, grandparents, step parents and other family members, including the affidavit material and record checks the court requires. Service is available in English, Punjabi and Hindi.
The short version
Guardianship is not the same as being on the birth certificate, and it is not the same as biology. If you are caring for a child and you are not a guardian, you may not be able to consent to medical treatment or make school decisions. That is the gap the application closes.
Who is a guardian automatically?
A child's parent is a guardian if the parent lived with the child after the child's birth, or if the parents made an agreement before the birth that both would be guardians. A parent who has never lived with the child is not automatically a guardian, though the parent can still apply.
A guardian remains a guardian after separation unless a court orders otherwise. Separating from the other parent does not remove your guardianship.
How does a non parent become a guardian?
By court order under section 51 of the Family Law Act. The applicant files an affidavit in the prescribed form covering their relationship to the child, their plan of care, and the results of a criminal record check, a protection order registry search and a Ministry of Children and Family Development records check.
The court applies the best interests of the child. Grandparents raising a grandchild, and step parents who have taken on a parental role, are the most common applicants.
What does guardianship let me decide?
Section 41 lists the parental responsibilities: making day to day decisions and having day to day care, deciding where the child lives, deciding about education, health care and religious upbringing, applying for a passport, and giving or refusing consent to medical treatment.
Responsibilities can be allocated. Two guardians may share all of them, or one may hold a specific responsibility where joint decision making has not worked.
How is guardianship changed or removed?
By court order. Removing a guardian is a serious step and courts do not do it lightly, because it severs the legal relationship between an adult and a child. The applicant has to show that removal serves the child's best interests.
Adding a guardian is more common, for example where a step parent has been raising the child for years, or where a second parent is being recognised.
What happens if a guardian dies?
A guardian can appoint a person to be the child's guardian on their death, in their will or in the prescribed form. This is worth doing, particularly for a sole guardian.
Where no appointment was made and no other guardian survives, an application is required. That process takes time at the worst possible moment for a family, which is the argument for putting the appointment in place in advance.
“She is extremely knowledgeable, and an experienced family law lawyer. I would highly recommend her to those who are looking for an experienced family law lawyer to deal with all family law matters.”
How we can help
- 01 Guardianship applications under section 51, including the required affidavit material
- 02 Record and registry checks required by the court
- 03 Applications by grandparents, step parents and other relatives caring for a child
- 04 Applications by a parent who did not live with the child after birth
- 05 Allocation of parental responsibilities between guardians
- 06 Testamentary appointment of a guardian, and applications after a guardian's death
The path a matter takes
Every file is different, but the shape is usually the same. Timings are typical, not promised.
01
First conversation
What has happened, what you want, and what the law actually allows.
Week one
02
Disclosure
Income, property and debt on the table for both sides. Nothing moves without it.
Weeks 2-8
03
Negotiation or mediation
Most matters resolve here, in writing, without a courtroom.
Months 2-6
04
Agreement or order
Terms signed, or filed with the court so they can be enforced.
On resolution
Frequently asked questions
Who is automatically a guardian of a child in BC?
A parent who lived with the child after birth, or a parent who agreed in writing before the birth to be a guardian. A parent who never lived with the child is not automatically a guardian.
How does a non parent become a guardian?
By applying to the court under section 51 of the Family Law Act, with an affidavit setting out the relationship, the plan of care, and criminal record, protection order and ministry record checks. The test is the child's best interests.
Is guardianship the same as custody?
No. Custody is the older term and it still appears in older orders. The Family Law Act uses guardianship, parenting time and decision making responsibility, which separate who is legally responsible from when the child is in each person's care.
What does guardianship let me decide?
Section 41 covers day to day care, where the child lives, education, health care, religious upbringing, passports and consent to medical treatment. Those responsibilities can be shared or allocated.
Can a guardian be removed?
Only by court order, and only where removal is in the child's best interests. It is treated as a serious step because it ends the legal relationship between that adult and the child.
What happens if a guardian dies?
A guardian can appoint a successor in their will or in the prescribed form. If no appointment was made and no other guardian survives, someone must apply to the court, which takes time.
Does being on the birth certificate make me a guardian?
Not by itself. Guardianship depends on the Family Law Act tests, not the birth registration. Living with the child after birth is what usually establishes it for a parent.
This page is general information about family law in British Columbia. It is not legal advice for your situation, and the law changes. Speak with a lawyer about the facts of your own matter.
