By Brittany Koenig, Paralegal Navigator, Calgary
In the context of family law, guardianship is often lumped in with parenting, but it is important to understand that these are distinct legal concepts and to be aware of any powers and entitlements that come with being a child’s legal guardian.
A child’s legal guardian is responsible for making day-to-day decisions for that child as well as any major decisions, such as religion, medical care, and education. A guardian’s legal authority and responsibilities are set out in the Alberta Family Law Act, SA 2003, c F-4.5 (“FLA”), sections 19 through 23.
Powers, Responsibilities, and Entitlements of a Guardian
The decision-making powers and responsibilities of a child’s legal guardian are detailed in Section 21 of the FLA and include:
- nurturing the child’s physical, psychological, and emotional development;
- ensuring the child has the necessaries of life (i.e. medical care, food, clothing, and shelter);
- making day-to-day decisions that affect the child;
- deciding the child’s place of residence and changes to the child’s place of residence;
- making decisions about the child’s education, including the nature, extent, and place of education and any participation in extracurricular school activities;
- making decisions regarding the child’s cultural, linguistic, religious and spiritual upbringing, and heritage;
- deciding who the child lives with and who the child can associate with;
- deciding whether the child should work and, if they do work, the nature and extent of the work, who the work is being done for, and related matters;
- consenting to medical, dental, and other health-related treatment for the child;
- granting or refusing consent in instances where a guardian’s consent is required by law in any application, approval, action, proceeding, or other matter;
- receiving and responding to any notice that a guardian is entitled or required by law to receive;
- commencing, defending, compromising or settling any legal proceedings related to the child and compromising or settling any proceedings taken against the child;
- appointing a person to act on behalf of the guardian in an emergency situation or if the guardian is temporarily absent because of illness or other reason;
- receiving information regarding any third parties’ health, education, or otherwise that may significantly affect the child; and
- exercising any other powers that are reasonably necessary to carry out the responsibilities of guardianship.
Becoming a Guardian
Section 20 of the FLA explains that the mother of the child is automatically considered to be a guardian; however, the father is only automatically considered to be a guardian if:
- he was the spouse of the mother of the child when the child was born;
- he was the spouse of the mother of the child and the marriage was terminated less than 300 days, either by annulment or a Divorce Judgment, before the child is born;
- he became the spouse of the mother of the child after the child is born and he acknowledges that he is the father;
- he cohabited with the mother of the child for at least 12 consecutive months either immediately before the child is born or immediately after the child is born and he has acknowledged that he is the father; or
- the father cohabited with the mother of the child for at least 12 consecutive months and the period of cohabitation ended less than 300 days before the birth of the child.
It is important to note that if a child is born because of a sexual assault, the person who committed that assault is not automatically eligible to be a guardian of a child under Section 20 of the FLA.
Guardians can also be:
- appointed by a Court Order (Section 23 of the FLA);
- nominated by a guardian of the child in a Will or a written document to replace that guardian in the event of their death or incapacity (Section 22 of the FLA); or
- appointed by the Court or the Director of Alberta Child and Family Services, pursuant to the Child and Youth Family Enhancement Act, RSA 2000, Chapter C-12, in cases where a child is being neglected or there is a need for the child to be protected.
If a person wants to be a guardian of a child, they can apply to the Court under Section 23 of the FLA. In these instances, the person applying should be an adult and they should either be a parent (who is not already a guardian) or they should have had care and control of the child for, at minimum, the last six months.
In all guardianship cases, the best interest of the child is paramount considering whether someone should be a legal guardian.
If you are looking for assistance with a guardianship related matter, the team at Coach My Case has extensive experience and knowledge - call today to book a free consultation with our legal navigator.