Termination of Guardianship

In family law, the termination of guardianship is a complex and sensitive issue that requires careful consideration of various legal factors and the best interests of the child involved. Under the Family Law Act, SA 2003, c F-4.5, the authority to bring an application for termination of guardianship is governed by specific provisions outlined in Section 25.

Legal Provisions

Section 25 of the Family Law Act provides the following:

Termination of guardianship

25 (1) The court may, on application by a guardian or a proposed guardian, make an order terminating the guardianship of a guardian, including the applicant, if there is a guardian in place or about to be appointed and if

1. the court is satisfied that the guardian whose guardianship is to be terminated consents to the termination, or
2. for reasons that appear to it to be sufficient, the court considers it necessary or desirable to do so.

(2) No order under subsection (1) relating to a child who is 12 years of age or older shall be made without the consent of the child.

(3) Despite subsection (2), the court may make an order dispensing with the consent of the child if the court is satisfied that there are good and sufficient reasons for doing so.

(4) If the court makes a guardianship order pursuant to an application by a child under section 23(2), the court may make a further order terminating the guardianship of any guardian if the court is satisfied that the guardian is unable or unwilling to exercise the powers, responsibilities and entitlements of guardianship in respect of the child.

The other relevant considerations for this application would be the Best Interests of the Child under section 18 of the Family Law Act. The court must take into consideration the best interests of the children. The factors to consider are specifically outlined under section 18(2).
These factors include but are not limited to:

• The child’s physical, emotional, and psychological needs
• The child’s age and stage of development
• The nature and strength of the relationship between the child and each guardian
• Any history of family violence
• The child’s views and preferences, if they can be reasonably ascertained

Cases

Two recent cases in Alberta shed light on how courts approach applications for termination of guardianship:

1. Morley v. Doy, 2021 ABQB 979: In this case, the mother sought to terminate the father’s guardianship due to his lack of involvement in the child’s life, substance abuse issues, and abuse towards her. The application was denied on the basis that the best interests of the child were already addressed by the current parenting order that provided the mother sole decision-making authority and primary parenting.

   The Justice referred to another decision, namely DAF v. SRG, 2020 ABCA 25, in which the court stated that “terminating a child’s right to visit with and know his father is an extreme remedy which should only be ordered in the most exceptional of circumstances.” In particular, the Justice also noted that “the child is only 9 years old, and time can result in change, including a material change in circumstances.”

   This case sets a very high threshold for termination of guardianship, one that even the significant factors before the court in that particular matter were not enough to meet. The court states, “It is not appropriate to terminate guardianship, a substantive and significant remedy against a parent, simply because the mother is exhausted by the litigation process.”

2. AMF v. AMJP, 2021 ABPC 212: Here, the mother successfully terminated the father’s guardianship due to inconsistent and sporadic contact with the child. The court emphasized that termination of guardianship is justified only in extreme circumstances, such as when a guardian has little contact with the child or fails to address parenting deficiencies.

   Specifically, the court found that “termination of guardianship is justified only in the most extreme of circumstances. This would include where a guardian… has had little contact with the child, or where there are parenting deficiencies which the guardian is unable or unwilling to address.” The court found that the Father had no good reason for not exercising parenting time and “disappearing” for extended periods of time. It was stated, in referencing the case of M.R.C. v. E.L., 2017 ABPC 156 that “for a parent to have sporadic surges of interest in a child followed by inexplicable lapses has a negative impact on the child.”

Conclusion

Termination of guardianship is a significant legal decision that requires thorough examination of the circumstances and adherence to legal principles, particularly those related to the best interests of the child. While recent case law provides some guidance, each case is unique, and outcomes may vary based on the specific facts and circumstances presented to the court. It is essential for parties involved in such proceedings to seek competent legal advice and representation to navigate the complexities of family law effectively.

References:
Family Law Act, SA 2003, c F-4.5 (section 25 and 18);
Morley v. Doy, 2021 ABQB 979;
DAF v. SRG, 2020 ABCA 25;
AMF v. AMJP, 2021 ABPC 212; and
M.R.C. v. E.L., 2017 ABPC 156.