Sea to Sky Law Blog

SOLE GUARDIANSHIP

Posted by Andrew Liggett | Jan 04, 2025 | 0 Comments

mother and baby

SOLE GUARDIANSHIP

We have decades of successful experience solving the court disputes of thousands of different people.

One of our notable achievements is that, after a lengthy trial, we were able to obtain an order for our client of sole guardianship. 

This achievement is notable because it is rare for a Court in British Columbia (BC) to deny a biological parent the title of Guardianship. 

After the 2011 Family Law Act (FLA) came into force in BC, family law was changed in BC so the old terms and definitions of Custody and Access were replaced with Guardianship, Parenting Responsibilities and Parenting Time, and Contact Time.  In the past, it was common that the primary caregiver could obtain an order for sole custody and the other parent would have access. Now the FLA says both parents who lived with their child before the family separation are automatically Guardians, while those who did not live with their child before separation could apply to become a Guardian.

The title of Guardian is important because only Guardians can have Parenting Responsibilities, which is the decision-making authority, and Parenting Time.  If you are not a Guardian then you can only have Contact Time - and that time can be limited by the Guardian.

The FLA also modernized the law to reflect social changes where men, as well as women, could be recognized the primary caregiver and homemaker, without stigma eg the man had to be employed full-time to support his family and not be the homemaker and primary caregiver.

And of course, the FLA gives equal rights to same-sex marriages and, of course, everyone has the same opportunity to parent the child, subject always to the "best interests" of the child.

The difficulty in obtaining an order for sole Guardianship arises because any concern about the ability of a parent, or other risk to the best interests of the child, can be addressed with specific orders eg reducing parenting responsibilities and parenting time eg one of the parents has the final decision making authority, or parenting time is supervised, etc. 

Thus by crafting the parenting arrangements to meet the unique circumstances of the child at the time, the Court can allow a less-than-ideal parent to retain, or be granted, the title of Guardian so there is a stronger legal connection of the parent to the child. It is the "best interests" of the child, not the feelings of either parent, that always have priority and child psychologists say that a child benefits from having both parents involved in its upbringing.

Consequently, case law confirms that circumstances are rare when the Court concludes that the best interests of the child require a biological parent be denied the title of Guardianship.

It is important to note that orders are made based on the evidence provided to prove the circumstances that exist at the time of the trial.  If circumstances change "significantly" then the orders can change.

About the Author

Andrew Liggett

Mr. Andrew Liggett, BA JD CD, Esquire Our Firm Founder Andrew has decades of successful experience representing clients throughout British Columbia in all levels of court including the Provincial Court, the Supreme Court and the Court of Appeal. Andrew completed a Bachelor's Degree in Political...

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