Guardianship: A different option for permanency

Guardianship is a court process based on the Family Law Act that offers a way for anyone to create permanency for a child by becoming their guardian. This article explores its many similarities to adoption and its key differences. 

What is guardianship? 

Becoming a guardian means that you are responsible for all the decisions, care, supervision, and day-to-day decisions for a child. When parents are absent or unable to raise their children, other parents, family members, or grandparents often step in to help. 

Guardianship involves important parental responsibilities. Through the application process, you will need to complete a special affidavit which requests a Ministry check, a criminal record check, and a Protective Order Registry check so the courts understand your relationship to the child. 

According to the Legal Services Society of BC, as a guardian, you have the responsibility to:

• make daily decisions about your child;
• have daily care and supervision of your child;
• decide where your child will live;
• decide who your child will associate with;
• apply for passports;
• receive information from others about your child (for example, about health and education); and
• make decisions about your child's education, religious upbringing, extracurricular activities, healthcare, and other important issues. 

Forms of guardianship

The legal transfer of custody typically falls under two forms:

54.1 guardianship applies to children with Continuing Custody Order (CCO) status. This means their parents' rights have been terminated and they are under the Ministry's permanent guardianship. Under a 54.1, custody can be transferred to a family or non-family member. 

54.01 guardianship applies to children who don't have CCO status and are not under the Ministry's permanent guardianship. They may be living with someone other than their parents (usually a family member). 

How is guardianship different from adoption?

There are some key differences between legal guardianship and adoption. The legal responsibilities of guardianship end at the child's 19th birthday. Guardianship does not sever the child's parental rights if they haven't already been severed through the process of Termination of Parental Rights (TPR). The child also doesn't have an automatic claim to inheriting their guardian's estate unless they're specifically named in the guardian's will (see sidebar for more on this). 

Often, the process of transferring guardianship is quicker and easier than the process of adoption. In some cases, it can even be done privately through a lawyer, without any counselling, education or support. Because of this, there's some concern that guardianship transfers may be a way of "rehoming" children when adoptions fail. 

For decades, adoption has been used as a tool of colonial violence against First Nations, Métis, and Inuit people. Because guardianship isn't associated with the same trauma and stigma, some Indigenous people feel more comfortable with guardianship as a permanency option. 

Guardianship families qualify for different levels of support depending on the details of their situation. In BC, a committee is currently meeting to try to equalize benefits and funding for guardianship families. This process was still underway at press time. At the moment, the benefits some families qualify for may include monthly maintenance payments; coverage for expenses such as counselling, medical and dental fees, or childcare; and tax benefits. Other families don't qualify for any benefits or supports. The details of this are complex and you should consult with a lawyer and a social worker before you sign any orders or agreements. The Parent Support Services Society of BC's website also has extensive information on benefits, subsidies, and other resources (www.parentsupportbc.ca). 

It's important to know that it's difficult to move from guardianship to legal adoption. The reason for this is that you can't transfer guardianship to yourself, which is what adoption effectively does. If your long-term goal is legal adoption, consult with a lawyer before entering into a guardianship agreement. 

When and why people choose guardianship

People choose to become guardians for different reasons. For some, it's an opportunity to offer security and confirm a long-term commitment to a child, for others, guardianship is selected to support a cultural belief. 

Regardless of why people choose guardianship, it is a long-term commitment to offer a loving home for a child. 

In some instances, it may not be possible for a parent to remain a guardian. Removal of guardianship rights can happen by a court order or by agreement. A parent may continue to have contact and time with the child, but they are not a guardian and they won't have parental responsibilities. 

Cultural considerations

Children come from many different backgrounds. As a guardian, it's important to support the child's personal identity and to keep them connected to their cultural community, especially if it's different from yours. For Indigenous groups, it means creating a plan for cultural education to nurture relationships from the beginning. 

Building relationships and understanding family connections is an important part of culture. Early on, your involvement in the community creates strong communication and understanding of different parenting styles. For children with an Indigenous background, asking questions and reaching out to their band is the best way to bridge gaps in understanding. 

Connect with community

Often guardianship families face similar situations or have similar questions to adoptive families. They also have unique needs. 

Connecting with the community can offer support and connection with other parents. A lot of guardians talk with other parents, and research specific topics to help them understand parenting requirements. 

There are a lot so different ways to connect with other guardianship families. Through Facebook groups, you can talk with other guardians to help share your experiences. AFABC also offers workshops and webinars on topics like FASD and loss that can help build your skills and create relationships with other guardians. 

Melissa Breker is a strategic thinker, workshop leader, and communications strategist that helps financial institutions, government, and software companies grow and change. She consulted with the adoption community on behalf o AFABC to learn more about guardianship. Find her at www.brekergroup.com.