1.2.10 Voluntary Surrender of Guardianship

This section contains provincial policies and standards regarding voluntary surrender of guardianship. It applies to child and family services agencies.

• Legislation

  Voluntary Surrender of Guardianship Agreements

  Section 16 of The Child and Family Services Act (the Act) pertains to the voluntary surrender of guardianship (VSG) agreements.

  Section 35 of the Child and Family Services Authorities Regulation transfers the power of the director under subsections 16(11) and (12) of the Act to an agency’s mandating authority to approve an application to withdraw a VSG after one year from the date it was signed and the child has not been placed for adoption. A copy of the VSG is emailed to the director at directorofchildwelfare@gov.mb.ca.

  Adoption Placements and Applications for Adoption Orders

  Sections 24 of The Adoption Act prohibits the placement of a child for adoption after the director has been served with a notice under section 23 of The Family Maintenance Act that a person is or is not a parent of a child, unless the application is withdrawn or dismissed.

  Section 25 of The Adoption Act states a judge shall not make an order under this Act where the director certifies that an application under section 23 of The Family Maintenance Act was served on the director within 21 days after a VSG agreement was signed unless the application is withdrawn or dismissed and all the appeals from the dismissal have been exhausted.

  Section 26 of The Adoption Act pertains to requirements for serving notice of a proposed adoption of a child upon a birth father. Subsection 26(3) lists when notice is not required and subsection (4) when a judge or master may dispense with notice.

  Section 44 sets out the procedures for placing a child for adoption where a VSG agreement has been or will be signed and for returning the child to the person who surrendered guardianship when the agreement is withdrawn.

  Prescribed Forms

  Schedule A of the Child and Family Services Regulation contains the following VSG prescribed forms:

  Form CFS-13 – Voluntary Surrender of Guardianship Agreement by Parent(s)
  Form CFS-14 – Voluntary Surrender of Guardianship Agreement by Guardian(s)
  Form CFS-15 – Voluntary Surrender of Guardianship Agreement by Mother
  Form CFS-16 – Certificate of Interpreter for Voluntary Surrender of Guardianship

  These forms are on CFSIS in Forms Case Management/VFS-EPS/Prescribed.

   

  Schedule B of the Adoption Regulation contains the following prescribed forms pertaining to notice to birth fathers:

  Form AA-1 – Notice to Birth Father
  Form AA-2 – Affidavit of Service

  These forms cannot be changed other than by an amendment to the regulation. These forms are on CFSIS in Forms Case Management\Adoption\Prescribed.

  Section 34 of the Child and Family Services Authorities Regulation transfers the power of the director under subsection 16(8) of the Act to an agency’s mandating authority to require an agency to submit all or any agreements under section 16 of the Act for approval.

• Policy

  Voluntary Surrender of Guardianship Process

  The signing of a voluntary surrender of guardianship (VSG) agreement has the same legal effect as a permanent order of guardianship under subsection 45(1) of the Act. It permanently terminates all parental rights and obligations for the child after 21 days from the date of signing (subsection 16(10) of the Act).

  Entering into a VSG is not recommended when one or more of the following apply:

  • An agency believes that a child may be in need of protection and has intervened under Part III of the Act.
  • The parent, guardian appointed by the court, or mother of the child has not freely and willingly agreed to surrender guardianship of the child.
  • The legal effect of a VSG and right to independent counsel has not been fully explained to a parent, guardian or mother of the child.
  • The mother of the child is unwilling or unable to disclose the name of the birth father or the birth father cannot be located and the mother agrees to the agency applying for a permanent order of guardianship under Part III of the Act.

• Standards

  1. Legal Responsibility - Before entering into a voluntary surrender of guardianship agreement (VSG) under section 16 of the Act with a parent, guardian or mother of a child, the case manager:
  • fully explains the legal implications of signing a VSG and advises the person of the right to independent legal counsel
  • advises the person of the right to withdraw a VSG within 21 days after the date of the agreement pursuant to subsection 16(10) of the Act
  • explains that the agency can place the child for adoption pursuant to section 44 of The Adoption Act
  • advises the person of the right to apply for withdrawal of a VSG under subsection 16(11) and (12) of the Act if the child is not placed for adoption within one year of signing the agreement
  2. Decision to Enter into VSG – No decision is made to enter into a VSG until:
  • the case manager has completed an assessment of the parent, guardian or mother and child
  • the case manager’s supervisor has reviewed and approved the care plan
  3. Signing of VSG – The appropriate Voluntary Surrender of Guardianship Agreement (CFS-13, CFS-14, or CFS-15) and, when applicable, the Certificate of Interpreter for Voluntary Surrender of Guardianship Agreement (CFS-16) are completed and signed prior to or on the date the child comes into care of the agency through the VSG. These forms are on CFSIS in Forms Case Management/VFS-EPS/Prescribed. The agreement is signed by:
  • the agency executive or regional director or person delegated in writing to act on behalf and in the absence of the agency or regional director
  • when applicable, the agency’s mandating authority pursuant to section 34 of the Child and Family Services Authorities Regulation
  4. Filing of VSG Forms – Agency copies of the Voluntary Surrender of Guardianship Agreement (CFS-13, CFS-14 or CFS-15) and, when applicable, the Certificate of Interpreter for Voluntary Surrender of Guardianship Agreement (CFS-16) are stored on the child-in-care file.
  5. Withdrawal Notices and Applications – All documentation relating to withdrawal of a VSG is stored on the child-in-care file.
  6. Distribution of VSG Forms – Signed copies of the Voluntary Surrender of Guardianship Agreement (CFS-13, CFS-14 or CFS-15) are:
  • provided or mailed to the parent, guardian or mother within one working day from the date the agency representative signs the form
  • sent to the agency’s mandating child and family services authority and to the director within 30 days from the date of signing

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