Joint Guardianship Models: Joyce Model vs the Horne Model

When you and the other parent of your child separate, one of the common issues that may be difficult to resolve is who gets to make decisions about the child moving forward. Sometimes, you and your former spouse may be able to make decisions about the child, or children, together. You may also be able to come to an agreement about who gets to make such decisions – for more information about family law agreements, you can see this blog post.

However, in many circumstances and for a variety of reasons, it may not be possible to come to such a consensus. In such a case, you may want to hire a lawyer to help you understand your rights and responsibilities, and help you seek a guardianship order in court. The following blog will discuss guardianship and decision-making orders, looking at the two Models of such orders in British Columbia: the Joyce Model and the Horne Model.

Guardianship Orders and Parental Responsibilities

The ability of a person to have parental responsibilities and parenting time with respect to a child is known as guardianship, as defined by section 40(1) of the British Columbia Family Law Act. In the federal Divorce Act, this is referred to as a “parenting order”, which allocates the decision-making responsibility and parenting time with respect to a child, in accordance with section 16.1(1).

One of the components of guardianship is parental responsibilities. Section 41 of the Family Law Act sets out the following elements of parental responsibilities:

(a)  making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

(b)  making decisions respecting where the child will reside;

(c)   making decisions respecting with whom the child will live and associate;

(d)  making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;

(e)  making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an Indigenous child, the child's Indigenous identity;

(f)    subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;

(g)  applying for a passport, licence, permit, benefit, privilege or other thing for the child;

(h)  giving, refusing or withdrawing consent for the child, if consent is required;

(i)    receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

(j)    requesting and receiving from third parties health, education or other information respecting the child;

(k)   subject to any applicable provincial legislation,

(i)              starting, defending, compromising or settling any proceeding relating to the child, and

(ii)             identifying, advancing and protecting the child's legal and financial interests;

(l)    exercising any other responsibilities reasonably necessary to nurture the child's development.

In the Divorce Act, this is referred to as “decision-making responsibility”. Section 2(1) defines decision-making responsibility as the responsibility for making significant decisions about a child’s well-being, including in respect of:

(a)  health;

(b)  education;

(c)   culture, language, religion and spirituality; and

(d)  significant extra-curricular activities

Parental decision making is therefore a highly important right as a parent that can have a significant impact on the wellbeing of your child.

The Guardianship Models

If you and your spouse disagree on who gets the final say over major decisions in your child’s life, a lawyer can help you apply to the Court to make a determination for you. There are two Models that have developed with respect to guardianship and parental responsibilities. In most cases, the Court will order one of these two Models, depending on the circumstances of your case.

The Joyce Model

The Joyce Model of guardianship and parental responsibilities stipulates that each parent has the obligation to discuss with the other parent all matters and decisions of a significant nature concerning the child. Both parents are also entitled to receive information about the child from third parties, such as the child’s school or doctor. However, if the parents are unable to come to an agreement regarding a significant decision to be made, the primary caregiver parent has the right to make the final decision.

The Joyce Model is commonly ordered in circumstances where one parent is the primary caregiver and has substantial parenting time with the child, while the other parent has contact with the child or access to the child, but not substantially equal parenting time.

Studies suggest that the Joyce Model may be used more often in joint guardianship orders and agreements. It helps to provide clarity over final decision making to the primary caregiver, which may logically align with the role that parent plays in the child’s life, but could also risk disincentivizing cooperation between the parents.

The Horne Model

The Horne Model of guardianship and parental responsibilities, like the Joyce Model, stipulates that each parent has the obligation to discuss with the other parent all matters and decisions of a significant nature concerning the child. This Model also enables each parent to receive information about the child from third parties. However, unlike the Joyce Model, the Horne Model does not include a clause giving one parent final decision making authority. Rather, if the parents disagree about a decision, they must work to resolve the issue themselves, go to mediation, or, if unsuccessful, take the issue to Court.

The Horne Model is commonly ordered in circumstances where both parents share substantially equal parenting time with the child.  This Model may lead to more disagreements because it does not allocate final decision making authority to one parent, but can also promote cooperation between the parents.

Sole Guardianship

In the above examples, a guardianship order is fashioned to reflect some degree of shared decision-making (or shared guardianship) between the parents. By contrast, sole guardianship occurs where only one parent makes decisions for the child. This is rarely ordered and a court typically requires extreme circumstances to remove a parent’s guardianship powers.

Guardianship issues can be complex, especially where there is a significant breakdown in the relationship between the parents, or if the relationship between the child and one of the parents is strained. A lawyer can help you navigate guardianship by providing advice, mediation or negotiation services, and if necessary, advocacy in Court.

If you would like to learn more, please contact our team of Vancouver family lawyers for a consultation.