British Columbia Law

Two Kinds of BC Guardianship Laws

By Andrew Liggett, Sea to Sky Law, New Westminster, BC

Guardianship of children in BC involves both Estate Law and Family Law — and most people do not realize these are two distinct legal frameworks, each with its own rules, terminology, and documents. Understanding the difference is essential for any parent planning their estate or navigating a family separation.

Guardianship in Your Will (Estate Law)

When you make your Last Will & Testament, you can appoint a Guardian (and an alternate Guardian) for your children if they are minors or adults who lack mental capacity.

This is a critically important part of any parent's Will. Without a named Guardian, a court will decide who cares for your children after your death — and that decision may not reflect your wishes. Judges consider the available candidates and apply a best-interests test, but they do not know your family the way you do.

When choosing a Guardian in your Will, consider:

• Parenting values and lifestyle — Does this person share your values about education, religion, discipline, and family life?
• Age and health — Will they realistically be able to parent your children for the necessary years?
• Relationship with the children — Do your children know and love this person?
• Willingness and capacity — Have you asked them and confirmed they agree?
• Geographic stability — Will they remain in BC or Canada, or might they relocate internationally?

The skills you want in a Guardian are often very different from the skills you want in your Executor or Trustee. It is common — and often wise — to name different people for each role. Your Executor manages the legal and financial administration of your estate. Your Guardian parents your children. These are distinct jobs requiring distinct strengths.

Importantly: a Guardian appointed in your Will only steps into their role after your death. Your Will has no legal effect while you are alive — so you need a completely different set of documents for planning during your lifetime.

Guardianship Under Family Law (BC Family Law Act)

Since March 18, 2013, when BC's Family Law Act (FLA) came into force, the old family law terms of "custody" and "access" were replaced with a new framework:

• Guardianship — legal status giving a parent authority over a child
• Parenting Responsibilities — specific decision-making powers (health care, education, travel, religious upbringing, etc.)
• Parenting Time — the period when a Guardian is responsible for day-to-day care

Under s. 39 of the FLA, both parents who lived with their child immediately before separation are automatically Guardians. This automatic status exists regardless of marital status — it applies to married spouses, common-law couples, and other parents equally.

A parent who never lived with the child before the family separation is not automatically a Guardian. They must apply to the court to be recognized as a Guardian, or the other parent must consent to their Guardian status in writing.

Parenting Responsibilities in Practice

A Guardian under the FLA has the authority and responsibility to make decisions about the child in all key areas of life. These responsibilities can be:

• Shared between both Guardians, requiring agreement on major decisions
• Allocated to one Guardian alone for specific types of decisions (for example, one parent has sole authority over educational decisions while both share authority over health care)
• Exercised by a sole guardian in exceptional cases where the court determines shared guardianship is not in the child's best interests

Why the Distinction Matters

Confusing estate-law guardianship with family-law guardianship is a common error, and it can create real problems. If you name a Guardian in your Will but have not considered the FLA framework for your children's day-to-day care during your lifetime, your family may face gaps or conflicts.

Comprehensive planning addresses both:

1. A Will naming a testamentary Guardian for after your death
2. Appropriate parenting agreements or court orders addressing Guardianship, Parenting Responsibilities, and Parenting Time during your lifetime

Sea to Sky Law™ advises on both estate law guardianship and family law guardianship — anywhere in BC. Whether you need a Will that properly plans for your children, or legal advice on a parenting dispute, contact Andrew Liggett BA JD CD to discuss your situation.

This article is general information, not legal or tax advice. Meetings are by appointment only, by phone or secure video.