Guardianship

Guardianship is the right (and the responsibility) to make major decisions for a child about such things as education, health care, and religious training, as well as how to manage anything the child may own, such as property or money. When a family lives together, the parents share these rights and responsibilities. After separation or divorce, guardianship can go to one parent (the sole guardian), or the parents can share it (and be joint guardians).

If one of the joint guardians dies, the surviving guardian automatically becomes the child’s sole guardian and may also be responsible for managing any inheritance until the child turns 19.

Laws about guardianship

The federal Divorce Act lumps all of the rights of guardianship in with custody: If you have custody, you automatically have guardianship. (It also deals with a separate category called access; for more information, see our fact sheet on access.)

Under the provincial Family Relations Act (part 2), guardianship can be separate from custody. If parents separate, the parent with whom the child normally lives is considered the sole guardian — but you can ask for a court order or file an agreement with the court that says otherwise.

Guardianship versus custody

To show the difference between custody and guardianship, here's an example: If one parent has custody but the parents share guardianship, then the parent with custody can make a decision about which summer camp to send the child to without having to consult the other parent. However, a decision about whether to enrol the child in a French immersion high school would have to be made together.

What to include in your guardianship order

In most cases today, people apply for orders for both custody and guardianship to be very clear about their rights. Parents can also sign an agreement and file it with the court, which gives it the same force as a court order. Often, an order or agreement will say whether guardianship will be sole or joint (or on rare occasions, shared jointly among the parents and another person, such as a grandparent). It will also define guardianship itself, so that there's no doubt about each parent's responsibilities.

There are two models that have evolved over time, and you could use either, or change them as you see fit. The most common one is known as the "Master Joyce model":

• The parents are to be the joint guardians of the child's estate (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 (meaning the child him or herself; the child’s property can be considered separately).
• 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 child's health (except emergency decisions), education, religious instruction, and general welfare.
• The parent who doesn't 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 can't agree about a major decision despite their best efforts, the custodial parent has the right to make the decision.
• If the non-custodial parent believes that a decision isn't in the child’s best interests, that parent has the right, under section 32 of the Family Relations Act, to ask the court to review the decision.
• Each parent has the right to get information about the child directly from third parties, including teachers, counsellors, medical professionals, and third party caregivers.

Or you might use the "Master Horne model" instead, which specifies that guardianship includes 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's a good idea to get legal advice before making a decision about guardianship.