Guardianship

Question 1

(A) In what circumstances are people required to make an application for guardianship under s.51(2) of the Family
Law Act?

Answer 1

All persons seeking guardianship of a child to whom they are not a parent must apply under s.51(2).
In addition, parents who have never lived with or regularly cared for the child and who do not have an agreement for
guardianship with the child’s other parent must also apply under s.51(2). If the person seeking an order appointing
them as guardian and the child’s other parents/guardians consent to the application, it may proceed as a request for
a desk order, by consent. However the s.51(2) application package will still need to be completed.
Remember, Section 39 of the FLA says that parents are generally guardians as long as they have: 1) lived with the
child; 2) regularly cared for the child; or 3) an agreement with the child’s other parent (and any other guardians)
providing they are a guardian. If a parent is not a guardian by virtue of one of these 3 circumstances, they must apply
to the court for an order under s.51(2).

Question 2

(B) What is the process for making a s.51(2) application for guardianship?

Answer 2

The FLA Regulation and the Court Rules set out the details of this application process. People seeking a Provincial
Court order for guardianship (by consent or otherwise) are required to include the following in their application
package:
- Consent for Child Protection Record Check, Form 5 of Appendix A of the Regulation,
- Request for Protection Order Registry Search
- an original and 3 copies of a Guardianship Affidavit in Form 5, along with the following attached as exhibits
to the Affidavit
o An MCFD records check
o A Protection Order Registry protection orders records check
o A criminal records check from a police force.
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Note: The process requires the person applying for guardianship to:
submit a Consent for Child Protection Record check and Request for Protection
Order Registry Search together with their Application About a Family Law Matter.
Apply for and pick up the criminal records check from their local police station.
The registry notifies the person applying for guardianship when the MCFD check and the
POR check are ready to be picked up from the court registry. The person applying for
guardianship then attaches the 3 checks as exhibits to their guardianship affidavit and files
the affidavit with the registry.