1. In a situation in which both parties have joint custody and joint guardianship of the children:
   1. Pursuant to s. 29(1) of the Family Relations Act, if a joint guardian dies, the surviving guardian will continue as sole guardian of the children.
   2. In a situation  in which one party is the sole guardian of the children and the other party has no guardianship or custodial rights:
      1. Pursuant to s. 29(2) of the Family Relations Act, if the sole guardian dies, a surviving parent of the children who is not a guardian at the time of the deceased’s death does not become a guardian unless the parent has been appointed under section 50 of the Infants Act or is, by order, appointed under section 30 of the Family Relations Act.

That section of the Infants Act states:

1. i.      That a parent may appoint, by deed if (the parent is) under age, otherwise by deed or will, a guardian to act in his or her place on his or her death as guardian of an infant child under 19 years; and,
2. ii.      If either parent dies, the surviving parent may by will transfer part or all of his or her rights and duties to custody, control and management of their infant child’s property, but not the infant’s services and earnings, to a suitable person.
3. Pursuant to s.  30 (1) of the Family Relations Act, a court may, on application:
   1. i.      appoint a guardian, or
   2. ii.      remove from office a guardian appointed or acting by virtue of this Part or a deed or testamentary appointment.
4. Pursuant to s.  30 (2) of the Family Relations Act, if a child is over 12 years of age, a court must not make or give effect under subsection (1) to an appointment unless:
   1. i.      the child consents in writing to the appointment, or
   2. ii.      if the child withholds consent to the appointment, the court is satisfied that the appointment is necessary in the best interests of the child.
5. Pursuant to s.  30 (3) of the Family Relations Act,  a person other than the father or mother of a child must not, under subsection (1) (a), be appointed guardian unless the court is satisfied that each parent of the child consents in writing to the appointment or, if a necessary consent has not been given, that:
   1. i.      the parent who could give or withhold consent is not reasonably available, or
   2. ii.      the consent is being unreasonably withheld.
6. Pursuant to s.  30 (4) of the Family Relations Act, an order must not be made under subsection (1) unless the present and prospective guardians have been given notice and an opportunity to be heard in the proceeding.
7. Finally, s 30 (5) of the Family Relations Act stipulates that if satisfied that circumstances warrant, the court may grant an exemption from subsection (4) respecting a present guardian.

Planning for your children’s future is a complex task and the intersection of family law and estate law makes it doubly so.

The best way to ensure that your wishes with respect to any issue being carried out after your death and that your children’s best interests are protected to is to obtain advice from independent legal counsel who can direct you through this legislative maze.  Here at Henderson Heinrichs our lawyers are capable of advising you with respect to such a complicated issue.

Mr. Justice R.D. Wilson stated found that,

[9]             The argument advanced by the Claimant is based on the proposition that the failure to comply with the terms of an order is equivalent to “a change in the condition, means, needs or other circumstances of the child of the marriage…”. To me, that is a novel proposition. No authority was cited in support of it. Absent binding authority, it is not a proposition which commends itself to me.

[10]         Non-compliance with the provisions of an order is not the equivalent of a change in circumstances. The Claimant’s application for a variation order is dismissed because she has failed to establish that there has been a change in the condition, means, needs or other circumstances of the children, or either of them.

Interestingly, neither party seems to have explored the prospect that, while the non-compliance did not in and of itself constitute a change in the children’s circumstances, the care actually received by the children since the pronouncement of the trial decision and their related needs would, in fact, have given rise to a difference.  It remains a question as to how far a determination such as Mr. Justice Wilson’s can reach.  It is common for parties to seek a variation based on the failure by the other to live up to the terms of an order, and it seems logical that the law should both direct the actions of the parties and also accurately reflect those actions when they change.

In Prost v. Prost 1990 CanLII 907 (B.C.C.A.), [1990] 30 R.F.L. (3d) 80, the court held that the governing principle is that the status quo is to be preserved and there is to be “minimum change, uprooting, or disruption at the initial or interim stage prior to trial”.  This overarching principle is that the status quo should change only when there is very “cogent evidence” to suggest that the status quo should not be maintained.  The court went on to say that courts should be reluctant to change the status quo when children are happy in a stable and secure setting.  The need of young children to feel secure in every way cannot be overemphasized.

The courts have held that the status quo arrangement becomes increasingly more significant in determining what is in the best interests of a child the longer the arrangement has been in place. This is especially true where the status quo has created a stable and secure environment for a child and there is no evidence to suggest that the child is not doing well in that environment.

N. Ahluwalia

Inexpensive video conferencing has been available to the public through internet based applications for years now, but it seems to only be within the past year that the courts have taken real notice.   It is a truism that video conferencing is not true personal contact.  It is, however, at a higher plane than email or telephone communication, in that it provides child and parent with another level information, a level which heretofore has only been available in a face to face meeting.

In British Columbia, the majority of cases which reference video conferencing do so only as an option of communication proposed by the party seeking to move or as evidence of a party’s willingness to facilitate access:  See Betz v. Joyce 2009 CarswellBC 2339 British Columbia Supreme Court, 2009 where at paragraph 57, the court acknowledges the willingness of the party to engage in Skype communications.

In Novlesky v. Novlesky 2009 CarswellBC 2638 British Columbia Supreme Court, 2009, at paragraph 86, the court stated that, “Mr. Lage, the children’s grandfather, is adamant about the importance of maintaining the children’s relationship with their father. I find he and the plaintiff are genuinely committed to supporting it. The children’s computers will be equipped with Skype, a program by which both visual and verbal communication occurs on the computer.”

In only one case to date, however, has the court made a clear and unambiguous statement regarding the limitations of the medium as an access method.  In C. (E.L.) v. B. (E.S.) 2009 CarswellBC 3066 British Columbia Supreme Court, 2009, the court said at paragraph 153:   “If the plaintiff moves with the children there is an emotional loss which will be suffered by them. They are only ages 7 and 4. They will grow up with limited physical and emotional affection from their father.  Skype is not enough. They will not be able to participate in activities or events with their father.”

Clearly, the courts are aware of what Skype is not.  In Gauvin v. Gauvin 2009 CarswellBC 2520 British Columbia Supreme Court, 2009, we see the beginnings of the courts exploration of what Skype actually is.  In that case at paragraph 7, Mme Justice Satanove stated that,  “The plaintiff also promises to acquire Skype and to pay for regular long-distance telephone access. Obviously, electronic communication is not as desirable as in-person access, but it does allow for the child to keep in touch with her dad every day if she so wishes.”

Here, the service is equated with telephone access.  They are both “electronic communication”  and, unfortunately, no comment is made differentiating the benefits the court sees.  Would the inability to access video conferencing have negatively affected the Plaintiff’s case?

As video conferencing technology progresses and becomes cheaper, moving from computers to smartphones, and with the emergence of 3D video, it will be interesting to see how the court positions this medium within the context of access in general.