Significant Changes To The Rights Of Children, Their Parents, Guardians, And Property Trustees Under the BC Family Law Act

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On March 18, 2013 British Columbians will see the old Family Relations Act repealed and the new Family Law Act come into force. Under the new Act, parents who lived together after their child was born will both be the child’s guardians. While the child’s parents are living together and after the child’s parents separate, each parent is the child’s guardian. A parent will cease being a child’s guardian if the parents agree in writing or the court orders otherwise. Guardians ensure that a child is personally cared for and are responsible make decisions about the child’s home, education, health, and religion, and their financial and legal interests.

 

The new Family Law Act allows guardians to appoint “stand-by guardians” to take over a guardian’s parental responsibilities in the event the guardian is not longer able to manage those responsibilities. The guardian appointment takes effect on the guardian’s incapacity and the appointment may be permanent for last only for the duration of the incapacity. A guardian may also appoint a person to take over in the event of the guardian’s death. Testamentary guardians are appointed by the deceased guardian’s will or though the execution of an appropriate form.

 

Under the new Family Law Act, parents are not presumptively entitled to be trustees of their children’s property, except for property with a value less than a certain amount.

Guardian not automatically entitled to receive property

176 Except as set out in section 178 [delivery of small property], a child’s guardian is not, by reason only of being a guardian,

(a) a trustee of the child’s property, or

(b) entitled to give a valid discharge on receiving property on behalf of the child.

Property trustees, who may include parents, must be appointed by the court in consultation with the Public Guardian and Trustee of British Columbia. A property trustee is authorized to hold property in trust for a child and invests and administers the property on the child’s behalf. The property may real estate, a financial asset, or may have been given to the child as a gift or left to the child under a will, trust agreement or a court order. A child may also be entitled to money as compensation for mental or physical injuries from a person or an insurance policy or from monies left to them by a family member.

 

The property trustee may release money to assist with or cover the cost of the child’s care, education, rehabilitation or other special opportunities. The trustee of the child’s property must ensure that the property is managed in a manner that is in the best interests of the child. Each expenditure must be carefully considered by the property trustee.

 

Funds are held in trust by the guardian until the child reaches the age of 19 years, which is the age of majority in BC, unless the trust instrument or Court order provides that the funds be held longer. When the child turns the age of 19 years, the trustee will provide transfer and release documents to the child to sign. Upon receipt of the properly executed release documents, funds and assets held in trust by the trustee are forwarded to the 19 year old child.

 

To wisely invest in learning more about your family law rights contact Marla Gilsig, a Vancouver BC family lawyer, collaborative lawyer, and mediator, at info@gislig.ca today!

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