What Does it Mean to be a Guardian of a Child?
If you are a “guardian” of a child, this will generally mean that you have certain rights and duties involving the care and upbringing of a child. A guardian has the right to exercise a certain set of “parental responsibilities” that are set out in section 40 of the Family Law Act.
These responsibilities include things like making decisions about the child’s health, where the child will live, extracurricular activities that the child will participate in or other day to day decisions on behalf of the child (for more information on parental responsibilities see “Parental Responsibilities” [insert hyperlink to Parental Responsibilities page]).
Who is (and who is not) a Guardian?Under the Family Law Act, parents will generally be considered as guardians of a child by default. Under section 39 of the Family Law Act, if the child’s parents are living together and then separate, each parent remains the guardian of the child and may only lose their guardianship status either by agreement between the parents or by a court order. A parent who has never lived with a child is not a child’s guardian unless one of following applies:
- The parent and all of the child’s guardians make an agreement stating that the parent is also a guardian of that child;
- The parent regularly cares for the child; or,
- They are parents because of an assisted reproduction agreement under section 30 of the Family Law Act.
If you are the new spouse or partner of a guardian of a child, you do not automatically become a guardian for that child because of your relationship with the guardian. For the most part, it is also not possible for the guardian of a child to simply appoint you or another person to be a guardian of that child, unless the other person is a parent. You will have to apply to the court to become a guardian of the child and can do so under section 51 of the Family Law Act. An application to the court for guardianship can be a complicated process and the lawyers at Cote & Evans Trial Lawyers can provide you with advice and assist you in your application for guardianship.
How does a person become a guardian?Anyone can apply to the court to become a guardian. This includes parents who aren’t guardians (see above), step-parents, siblings (brothers or sisters), extended family members people, and even people who aren’t family members. The court is very cautious when determining who should become a guardian and considers only the child’s best interests in making its decision. To apply to become a guardian, you need to complete an application and submit it to the court.
As part of that application, you need to submit an affidavit setting out information about yourself and your family, your relationship to the child, and how you plan to care for the child. This affidavit must also include police and MCFD records checks. You must then deliver notice of your application to all affected parties (including the child if he or she is over 12), and they have a chance to respond. A judge then makes a decision about whether you will or will not be a guardian of the child.
Generally an obligation to pay child support comes to an end once the child reaches the age of majority except for certain circumstances. Specifically an adult child over the age of 19 may still be entitled to child support if they are still financially dependent on their parents and are unable to be financially independent due to illness, disability or other cause. A parent may still be obligated to pay child support for a child that has reached the age of majority in the following circumstances:
- the child continues to attend post secondary school;
- the child suffers from an illness or disability; or
- the child is unable to find work and become financially independent.
An adult child suffering from a severe illness or disability that impacts their ability to obtain or maintain work it would be impossible for them to become financially independent from their parents. This illness or disability may entitle them to child support.
More often then not, the issue of if adult child support arises in circumstances when an adult child is attending post secondary school and as a result they are still financially dependent on their parents. The court [hyperlink to Farden v. Farden, 1993 CanlII 2570 (BC SC)] considers the following factors when determining if an adult child attending post secondary school is entitled to child support:
- whether the child is enrolled in a course of studies and whether it is a full-time or part-time course;
- whether the child has or has not applied for student loans or other financial assistance such as bursaries;
- whether the child chosen course of study is related to future employment
- the ability of the child to work part-time in order to contribute to his or her own support;
- the age of the child;
- the child’s past academic performance and their current academic performance;
- what plans the parents made for the child’s education during their relationship; and
- at least in the case of a mature child, whether or not the child has unilaterally terminated a relationship from the parent from who support is sought.
It is important to note that each case is different and that the court will look to a variety of factors when determining if adult child is entitled to child support. As such, an individual may want to contact a lawyer to determine if they have an obligation to continue paying child support for an adult child or if they are entitled to make a claim for child support for an adult child.
A step-parent is someone who marries a person with children, or who is the unmarried spouse of a person with children. Step-parents don’t have the same automatic duty to pay child support that parents do. In certain circumstances, however, a step-parent can also have a duty to pay child support for the child of their spouse.
According to the law, a stepparent may be required to pay child support if:
- He or she has contributed to the child’s living costs for at least one year;
- The stepparent and parent have separated; and,
- The application for child support is made within one year of the stepparent’s last contribution to the child’s living costs.
While the above sets out the requirements, whether a court will order a step-parent to pay child support depends on the circumstances. When deciding if a stepparent should pay child support, a court looks at the child’s standard of living when they lived with the stepparent, and how long they lived together. The step-parent’s obligation to pay child support is secondary to that of the child’s parents and guardians.
It is a good idea to consult with one of the lawyers at Cote & Evans Trial Lawyers if you are considering an application for child support from a step-parent, or if you are a step-parent who is facing a claim for child support.
Child Support in Shared Parenting
When a child lives primarily with one parent (60% of the time or more), then the other parent pays child support according to a table published by the federal government depending on where they live, the number of children, and their income.
In cases where the parenting arrangements are different from the above, the table amount of child support still provides a starting point, but there are some additional calculations and considerations.
If the children live at least 40 per cent of the time with each parent over the course of a year, this is considered “shared custody” under the Federal Child Support Guidelines. In that case, both parents calculate their child support obligation, as if the child lived with the other parent, using the tables. Then, whoever has a higher obligation pays the other parent the difference. For instance, if Parent #1 had a child support obligation of $750 per month based on their income, and Parent #2 had an obligation of $300 based on their income, then Parent #1 would pay $450 – the difference between the two amounts.
If there is more than one child, and the children live primarily with different parents, then this is considered a “split custody” arrangement under the Federal Child Support Guidelines. For instance, if one child lives with the father, and one child lives with the mother, then they have a split custody arrangement.
In this case, each must use the Child Support Guidelines to determine what they would owe the other parent based on their own income level and the number of children living with the other parent. Like in shared custody situations, the parent who would owe more to the other must pay the difference between the two amounts.