In Alberta, a child’s birth mother and her male spouse are considered the default guardian arrangement for a child. However, families do not always fit neatly into these categories, and as the situation calls for it, roles may have to be defined. In the eyes of the law, it is essential that children have a designated person or persons who look out for their best interests, as children are not considered to have the capacity to advocate for themselves until they reach the age of majority.
What is a legal guardian?
In Alberta, a legal guardian is one who is responsible for the well being of a minor child or adult over the age of 18 who has been determined to not have the capacity to make decisions for themselves. For the purposes of this article, we will be focusing on child guardianship. A guardian of a child has certain rights, responsibilities and powers with respect to the minor child.
A guardian has the right to:
- Make important decisions about a child’s life.
- To spend enough time with the child that they are able to make informed decisions and exercise their responsibilities towards the child.
Guardians are responsible for:
- The basic needs of the child: food, clothing, shelter and medical care.
- They are also responsible to care for the child’s physical, emotional and psychological development.
- Guardians have the power to determine:
- Where and with whom the child will live
- What the child’s cultural, linguistic, religious and spiritual upbringing will be
- The type of education the child will receive
- Day-to-day decisions affecting the child including care and daily activities
- Whether the child should work
- Dental and medical treatment
- To receive health, education or other information on behalf of the child
- Representing the child in legal matters
- Giving consent for the child to marry if they are between 16 and 18 years old
Guardianship does not give you the right to make financial decisions for a child.
What laws talk about child guardianship?
There are a few legal documents that discuss child guardianship: The Family Law Act and The Divorce Act. The Divorce Act is a federal document and governs guardianship in cases of divorce, and The Family Law Act governs all other child guardianship cases in Alberta in which divorce is NOT taking place.
Who can become a guardian?
A guardian can be different than a parent, though parents are by default considered the guardians of their children as long as they fit certain criteria.
A parent can become a guardian as long as they acknowledge that they are the parent of the child and demonstrate an intention to assume responsibility for the child within one year of becoming aware of the pregnancy or birth of the child.
Demonstrating that you have the best intentions for a child is important to become a child’s guardian. In Alberta, a person can be a guardian but not a parent, and be a parent but not a guardian.
Intent to assume responsibility for a child can take many forms including marriage to the other parent, cohabitating with the other parent, or voluntarily offering financial or other support.
Non-parent adults are also able to become guardians if they fit certain criteria such as:
- They have had care and control of a child for a period of over 6 months.
- Were assigned guardianship in the will of one of the parents.
A child can have more than 2 guardians, such as in the case of parents who remarry; a child could have 2 sets of parent guardians: a mother, a stepmother, a father and a stepfather.
As a side note, if a pregnancy is the result of a sexual assault, the person who committed the assault is not eligible to become a guardian.
If there is no adult that is able or willing to assume guardianship for a child, a public guardian will be assigned by the court.
How can you become a guardian if you are not a parent?
There are a few ways to become a guardian if you are not already a parent:
- A guardian who is a parent of a child may appoint a person to be a guardian in their will
- Relatives or friends can apply for a Guardianship Order, which requires a ‘home study’. A home study requires a social worker to visit your home and talk to the people around you in order to determine if you would be a good guardian for the child.
Please keep in mind that the information provided here is for general information, and if you have specific or situational questions related to child guardianship, speak with Kolinsky Law lawyer.