How do you terminate Guardianship Under the Family Law Act?
By Tanya Thakur, Vancouver Family Lawyer
We often see disputes occurring between guardians in family law cases. Sometimes after a separation or divorce, guardians of children don’t see eye to eye when it comes to important decisions, like when to vaccinate a child. When this happens, the guardians of the child can resolve their impasse by going to court and a judge can make a decision.
However, sometimes one parent refuses to make good decisions or to participate at all in guardianship responsibilities. When this happens there can be an application to remove a parent as guardian.
Who is a guardian?
Guardians have the ability to exercise parenting time and make parenting decisions, including important decisions regarding their child.
Unless otherwise appointed by the court, guardians are usually parents of the child. Parents who have never lived with the child may not be guardians unless they’ve regularly cared for the child, been appointed as a guardian by court order or agreement, or otherwise been named as a guardian in the other parent’s will.
There may be circumstances in which you may consider removing someone as a guardian of your child. A parent, who is already a guardian, may terminate the other parent’s guardianship under section 39 of the Family Law Act.
Upon application by a guardian, a court may terminate another parent’s guardianship under section 51 of the Family Law Act. Terminating guardianship is viewed as an extreme measure and a last resort. The court will first attempt to address the issue through restructuring parenting responsibilities and parenting time. This means that the court can order one parent to have responsibility over certain decisions, like medical decisions, and we have seen this before in cases where one parent refuses to vaccinate children. Both parents are still guardians in this case, but one now has sole decision-making over medical issues for the child.
However, the court may be willing to terminate a parent’s guardianship where:
- the parent is disinterested in being a guardian and fails to participate in the court proceedings (J.L.M. v. G.A.T., 2013 BCPC 96);
- the child does not wish to have the parent as a guardian assuming the child is old enough for the courts to consider her views (Y.Z. v. A.C., 2019 BCSC 1564);
The court may refuse to terminate a parent’s guardianship where:
- the parent has made some efforts in the court proceeds to resist their termination as a guardian (K.A.J v. B.G.J, 2021 BCSC 245);
- the parent’s behavioural concerns can be addressed through counselling or professional help (K.A.J v. B.G.J, 2021 BCSC 245);
- the concerns towards the child can be addressed through allocating parenting time or parenting responsibilities (M.A.G. v. P.L.M., 2014 BCSC 126, at paras. 44-46).
In K.A.J v. B.G.J, 2021 BCSC 245, the court refused to remove the respondent father as a guardian despite the fact that he did not respond to the claimant’s initiating proceedings and was negligent in the court proceedings. The court cited the fact that the father made a request to adjourn on the second day of trial so he could participate when deciding that he had some interest in being a guardian.
Despite finding that the children and claimant were at risk of serious physical and psychological violence, the court in K.A.J v. B.G.J, 2021 BCSC 245 also found that there were not sufficient grounds to remove the father as a guardian because: 1) his behavioural concerns could be addressed through counselling or seeking other professional help and 2) the mother’s concerns could be addressed by giving her all the decision-making regarding the children.
It is very difficult to terminate a parent’s guardianship as it is a last resort. If you are considering applying for sole guardianship or are facing an application for terminating your guardianship, the family lawyers at Crossroads Law have extensive experience in family law matters relating to guardianship, parenting and decision-making for children. Call the family lawyers at Crossroads Law today for your free 20-minute consultation.