M.S. v. G.S., a decision released about two weeks ago, does just that. In this case, an application is brought by two paternal grandparents for interim sole guardianship of their three young grandchildren. By the time this matter reached the courtroom, the children had (allegedly) already been exposed to a maelstrom of misfortune, including suffering family violence at the hands of their father, accidental ingestion of illicit drugs left out by one or both parents, and even being present for the killing of a masked intruder by their mother’s live-in boyfriend. Suffice it to say, the background story makes for gripping, tragic reading.
Justice Jenkins, the presiding judge in M.S. v. G.S., makes significant legal waves, by declaring two things:
- “Custody” under the Family Relations Act (“FRA”) is basically interchangeable with “guardianship” under the FLA; and
- The long-held presumption in favor of parents in guardianship applications (see Chapman v. Chapman,  B.C.J. No. 316 (S.C.)) is incompatible with the FLA and the ‘best interests of the child only’ test.
Are the terms “custody” and “guardianship” interchangeable?
Over the course of the grandparents' efforts to gain guardianship status, a report on the best interests of the child was prepared and completed in January 2013, well before the FLA came into force. Consequently, the report used the "custody and access" terminology of the FRA to make its recommendations to the Court. In translating these recommendations into the language of the FLA, Justice Jenkins makes an interesting comment on the interchangeability of the concept of "custody" in the FRA and "guardianship" in the FLA:
 The term “custody” is no longer used in the FLA and instead has been essentially substituted with the term “guardianship”. Only a guardian may have parenting responsibilities under the FLA. Accordingly, where Dr. Colby uses the term “custody” in his report, I will substitute the word “guardianship” as the term is applied in the FLA.
- "Custody" under the FRA meant physical possession of a child, whereas under the FLA it is possible that a guardian doesn't exercise or have any parenting time at all - so may never have possession of the child.
- s. 40(4) of the FLA specifically says equal parenting responsibilities and parenting time among guardians is not to be presumed.
- While it's true that existing FRA orders giving someone custody OR guardianship over a child will be interpreted under the transitional provisions of the FLA as saying that person is a guardian with parenting time and parenting responsibilities [s. 251(1)(a) of the FLA], the same transitional provisions indicate that existing parenting arrangements will be ‘grandfathered’ in as much as that is possible [s. 251(2) of the FLA.] Parenting time should therefore not be ‘read into’ existing orders by way of these transitional provisions, nor can the transitional provisions be made to support the equivalency of "custody" and "guardianship".
- If "custody" in the FRA is the equivalent of "guardianship" under the FLA, what is the FLA equivalent of “guardianship” in the FRA?
Death of a preferential parental presumption
Justice Jenkins goes on to say that, while some things may remain essentially the same after the enactment of the FLA, some old case law and some comfortable old shortcuts must now be set aside in favour of the "best interests of the child only" test. In particular, we cannot prefer parents as guardians without some good reason to do so:
 I have in mind several decisions of our courts, including Chapman v. Chapman,  B.C.J. No. 316 (S.C.), D.W.M. v. J.S.M. et al, 2003 BCSC 1229 (CanLII), 2003 BCSC 1229, and J.B.E. v. F.S.L., 2004 BCSC 1511 (CanLII), 2004 BCSC 1511. Each of these cases stand for the proposition that all things being equal, children belong with their parent, as opposed to others seeking guardianship (formerly custody). This proposition likely no longer applies as it does not accord with the fundamental concept of the FLA that the best interests of the children are the only consideration. Preferring a parent is presumably a consideration of the parent’s interests. Therefore, the authorities referred to above, and others like them, would not result in a decision in full accord with the best interests of the children as conceived by the FLA.
Before this case was released, I would often tell new clients, much to their chagrin, that the ‘best interests of the child only’ test probably meant that they do not actually have any rights at all with respect to their children. Rather, it is their children who have rights to proper parenting. The extent to which a parent, or any other person for that matter, will be permitted to participate in their child's life and make parenting decisions for that child will be tied directly to their ability to contribute to the child's wellbeing. A parent cannot rest on their biological laurels to keep a hand in the child’s development - at least not if someone else is making a bid for guardianship. This interpretation certainly seems to be true in light of M.S. v. G.S., and seems to be in keeping with the spirit of the FLA.