Guardianship Rights to a Child

This topic discusses guardianship rights to a child. In Alberta, the ability to make decisions with regard to a child is tied to guardianship status rather than parentage status, whether the guardians are in an intact relationship or not. The Courts may grant guardianship rights. Any adult may apply for a Guardianship Order to care for a child or dependant adult, and there is no limit to the number of guardians that a child or dependant adult can have.

Guardianship gives an adult the right to make decisions for a child with respect to the following:

• Ensure that the child has the necessities of life, including medical care, food, clothing, and shelter
• Consenting to medical, dental, and other health-related treatment for the child
• Deciding what education the child will receive
• Deciding on the child’s cultural, linguistic, religious, and spiritual upbringing and heritage
• Deciding where the child will live and with whom
  • Deciding whether the child should work and, if so, the nature and extent of the work, for whom the work is to be done and related matters
  • Giving consent to a child to marry if between the ages of 16 and 18 years
  • Giving consent to a child to obtain a learner’s licence
  • Representing the child in a law suit
    • Managing every aspect of the child’s daily life including their physical, psychological, emotional and financial well being

According to the Family Law Act, a person can become a guardian in the following ways:

• A parent will automatically become a guardian by operation of law provided that the parent becomes aware of the pregnancy or becomes aware of the birth of the child, whichever is earlier, within one (1) year (Section 20 – and only parents apply). The definition of “parent” now includes one or two fathers or one or two mothers. However, if a pregnancy was the result of a sexual assault, the parent committing the assault is not eligible to become a guardian under this section. Such a parent would have to apply for guardianship under Section 23;
• A person is appointed a guardian by a Court Order upon proving to the Court that the appointment is within the child’s best interest (Section 23); and
• A person is nominated by a guardian in a will or written document to replace the guardian in the event of his or her death (Section 22).

Under Section 23(1) of the Family Law Act, the Court has additional jurisdiction to grant guardianship. The Court may appoint a person to be the guardian of the child upon application by that person. The person applying should be an adult and have had care and control of the child for a period of more than 6 months, or should be a parent other than a guardian of a child. The Court will always consider the best interests of the child in granting the Guardianship Order. The Guardianship Order will provide only for the personal care, day-to-day decisions for the child, and to make all major decisions for the child, including those related to religion, medical care and schooling. It will not give you the right to make decisions for the financial affairs of the child. If you require authority over the child’s financial affairs, you should consult a lawyer. This is a complex responsibility, and you should discuss this particular role with a lawyer.

Under Section 22 of the Family Law Act, a person can be nominated by a guardian in a will or written document that is signed and dated to replace the guardian in the event of his or her death. The nominated guardian would only have guardianship powers that the nominating guardian had. The Court must confirm the appointment for the guardianship to be legal. If you have sole custody of your child, then you may appoint anyone you wish. The other parent of the child may make an application upon your death for guardianship. The Court will always consider the best interests of the child in granting the Guardianship Order.

Carefully describe the guardianship duties in your appointment. For example, you may appoint one sister as guardian of the child’s person. The child would live with her and that sister would make the day-to-day decisions for the child. Then you may appoint another sister to be trustee to manage any money that you leave to your child.

When you are making a decision as to whom you should appoint as guardian for your children, you may want to consider the following:

• The age of the child and the age of the potential guardian
• The guardian’s lifestyle
• The attitude of the guardian towards child rearing
• The value of education
• The religious beliefs
• The child’s wishes – The Courts will hear a child in the guardianship application if the child is 12 years or older.

Interview the person you are appointing as guardian of your child. Listen to their beliefs and their values, and make your decision based on their attitudes. You should also make the necessary appointments for any money your child will inherit. You may need to provide for money for the guardian who will care for your child on a day-to-day basis. Remember to appoint an alternative guardian. The original guardian you appointed may not be able to assume the responsibility or may not be able to continue to act as guardian. That person may become sick on a permanent basis and may have to refuse or resign the guardianship. If there is no guardian appointed, a director designed by the Minister for the purposes of the Child, Youth and Family Enhancement Act will apply to become a guardian of your child or the Court may appoint someone other than the person you would have chosen to care for your child.

The Director will also make an application to become the sole or joint guardian of a child where a child is neglected and in need of protective services. The Court may grant temporary or permanent guardianship to the Director depending upon the circumstances. A temporary Guardianship Order is necessary to make decisions concerning the child who is placed in protective services on a temporary basis. Where there is a Permanent Order granted, the child may be placed for adoption. In the case of an approved foster parent of the child, the Director is appointed sole guardian of the child and supervises the child’s welfare in your home.