Guardianship
Guardianship is a term used by the Family Law Act. The act provides that while a child’s parents are living together and after they separate, each parent is a guardian of the child. In situations other than that described, the Act goes on to define when and under what circumstances a parent may be a guardian to a child. Importantly, the Act also provides that only a guardian may have parental responsibilities (defined at Section 41 of the Act to include such matters as day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child). Also, only a guardian may have parenting time with a child. A non-guardian’s time with a child is described by the Act as “contact” with the child. Parenting time is a broader right than is contact, and bestows upon the guardian greater rights than is the case where a parent only has contact rights to a child.
Visitation Rights
Visitation rights are addressed by both the Divorce Act and the Family Law Act. Under the both Acts, visitation rights are referred to as “parenting time.” Section 16(5) of the Divorce Act provides that, in addition to the right of access, a spouse granted access to a child of the marriage has the right to make inquiries and to be given information as to the health, education and welfare of the child.
Under the Family Law Act, subject to an order that provides otherwise, a guardian exercising parenting time also has the right to make day-to-day decisions affecting the child and to have day-to-day care, control and supervision of the child. Time spent with a child by a person who is not a guardian (which may, in some instances, include a parent of that child) is referred to as “contact”. The rights of a person who has only contact with a child are much less significant than those of a guardian exercising parenting time with that child. Under the Divorce Act, decision-making responsibility may be allocated to either spouse, to both spouses, or a person other than a spouse, who is a parent of the child, standss in the place of a parent, or intends to stand in the place of a parent.