Terminating a Parent’s Guardianship over a Child - by Haadia Khalid
To determine whether to terminate a person’s guardianship of a child, the court will consider only the best interests of the child[1]. Further, courts have stipulated that it will rarely be in the child’s best interests to terminate guardianship and that “orders to terminate guardianship would only issue in very rare and clearest of cases where cancelling guardianship is in the child’s best interests”.
Section 51(1)(b) of the Family Law Act permits the court to, on application, terminate a person’s guardianship of a child.
The caselaw on the subject suggests that courts employ a two-part legal test when determining whether to terminate guardianship (I note, however, that courts have not expressly compartmentalized this as a two-part test).
First, where there are concerns about one guardian’s parenting capacity, the court will consider whether a reallocation of parenting responsibilities could sufficiently address the harm arising from the parent’s continued guardianship. If it does, the court will not terminate guardianship:
[23] In D. v. D., 2013 BCPC 135, Judge Merrick said that it will rarely be in a child’s best interests to terminate guardianship and thereby turn a parent from a guardian into a person with contact. Where there are concerns about one guardian’s parenting capacity, the court should first consider whether a reallocation of parenting responsibilities can eliminate any risk to the child’s best interests arising from the parent’s continued guardianship. If so, the court should refuse to terminate. This approach allows the child to safely retain the benefit of a meaningful and significant relationship with their parent. Judge Merrick said this:
24 When considering an application to terminate a parent’s guardianship, I am of the view that considering the factors enumerated in s. 37(2) of the Family Law Act, termination can only occur in the most extreme situations. The approach to be taken is, first, to ask whether, through an allocation of parenting responsibilities, it continues to be in the best interests of the children that the parent remain a guardian. If it is, guardianship should not be terminated. It must be remembered that once a parent is no longer a guardian, that parent loses all parenting responsibilities and rights and is simply an adult who may have contact with the children.
25 In my view, it will be rare when that is in the child’s, or in this case, the children’s best interests.
26 By first determining whether a parent guardian can remain a guardian by allocating or reallocating parenting responsibilities, parents will have the maximum opportunity to remain a significant part of the child’s life.
Second, courts will apply the best-interests analysis- and consider all the child’s needs and circumstances, including the non-exhaustive factors listed in s. 37(2)(a) to (j) of the FLA.[2]
How have courts treated family violence in applications to terminate guardianship?
The caselaw suggests that family violence towards the other guardian/ former spouse does not automatically warrant termination of guardianship order. Courts will consider (i) whether an order reallocating parenting responsibilities could adequately mitigate the risk to the child; or (ii) how the violence impacts the wellbeing, safety and security of the child.
(i) Whether an order reallocating parenting responsibilities can adequately mitigate the risk to the child?
In D. v. D., 2013 BCPC 135, the court found that applicant suffered family violence by the respondent and observed that the family violence impaired her ability to care for the children. Despite this finding, the court concluded that the harm to the child could be adequately mitigated by a severe restriction of the respondent’s parenting responsibilities (all parenting time was supervised, father prohibited from day-to-day decision-making, and the father only retained right to receive information) and declined to terminate guardianship of the respondent. In reaching this conclusion, the court emphasized his strong bond with the children and the children’s wish to continue to have a meaningful relationship with the father[3].
By contrast, in J.L.M. v. G.A.T., 2013 BCPC 96, the court granted an order terminating Mr. T’s guardianship of the child. Mr. T faced criminal charges for assaulting Ms. T and Ms. T sought sole guardianship of K. While the court briefly acknowledged the severity of family violence, the court stressed Mr. T’s lack of interest in the proceedings (his failure to file a Reply, evidence of Mr. T’s lack of interest in guardianship) when reaching their decision.
D. v D. and J.L.M v G.A.T suggests that even where a guardian perpetrates violence against the other guardian, courts will be reluctant to terminate guardianship if that guardian can provide evidence of a strong bond with the children.
(ii) How the violence impacts the wellbeing, safety and security of the child? (s. 37 analysis)
Section 37 of the FLA specifies that:
37(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:
…
(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in the person's ability to care for the child and meet the child's needs;
(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
…
In T.F. v S.H. 2023 BCPC 266, the parties (Uncle T and Ms. H) both agreed that Ms. H’s guardianship over the child K should be terminated and that Uncle T should have sole parenting responsibilities. The court acknowledged family violence against Ms. H (consistent coercion, threats and potential violence against Ms. H), but considered the effect of such family violence under section 37(2)(g), (h) and (i) of the FLA.
Under section 37(2)(g) and (h), the court reasoned that because the family violence was never directed at Child R, Child R did not suffer harm to his physical, psychological or emotional well-being, and that Child R was too young to appreciate the impact of family violence, that this meant that there was no concern that Uncle T was impaired in his ability to meet Child R’s needs.
Under section 37(2)(i), the court found that the extreme toxicity between the parties and the potential high risk for family violence, it would be inappropriate to enact a an arrangement that would require the parties to co-operate with each other regarding issues affecting Child R. Further, the court noted that if Child R remained in the joint care of the parties, he would be exposed to family violence.
[1] See T.H. v S.H 2023 BCPC 266 at para 18-19; J.W.K. v. E.K. 2014 BCSC 1625 at paras. 21 to 30; D. v. D., 2013 BCPC 135 at para 24-26; P.N.K. v. C.L., 2013 BCSC 1856 at para 95.
[2] See T.H. v S.H 2023 BCPC 266
