What's the Difference Between Custody and Guardianship?

“Custody” is the term used in the Divorce Act to describe the rights and obligations a person has regarding a child. The Divorce Act is federal legislation so it applies in both Ontario and BC, but it only applies to married people.

In BC, the Family Law Act uses the term “guardianship” to mean the same things that “custody” does in the Divorce Act.

The fact that the Divorce Act and the BC FLA use different words to mean the same thing would be a bit irritating, but not too big of a problem except that, the Ontario Children’s Law Reform Act uses both terms. (The old Family Relations Act that was in force in BC until March 18, 2013, also used both “custody” and “guardianship”.)

Frankly, this confuses everyone. Even judges frequently blur the lines between these terms.

In short, in Ontario, if you are talking about “custody” under the Children’s Law Reform Act, you are technically describing the rights and obligations a person has regarding a child’s physical wellbeing and upbringing. Section 20(2) of the CLRA explains that:

 

“A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child.”

If you are talking about “guardianship” of a child under the CLRA, you are talking about the rights and responsibilities to manage the financial affairs of the child.

 

“A guardian of the property of a child has charge of and is responsible for the care and management of the property of the child.”

If you are talking about “custody” under the Divorce Act, however, or if you’re talking about “guardianship” under the BC FLA, you are referring to both the issues above: rights and responsibilities to safeguard and make decisions for the child in terms of his or her life, and his or her finances.

If the information on this site doesn't answer your question, you can book a free, no obligation consultation in Toronto about your divorce and family law rights in Ontario and BC. We provide video and telephone consultations.