In Canada the Court has always applied a Child’s Best Interest test to determine which parent or guardian shall have custody of the child. That said, the definition of the Child Best Interest test largely saw creation through Judge made case law. The changes made to the Divorce Act in 2020 outline exactly what factors a Court must consider when determining what is in the ‘best interests of the child.’ If you face guardianship issues, we help families like yours. Reach out to the Kahane Law Office family lawyers for help today.
Guardianship Of a Child
In Alberta, a child’s birth mother and birth father are the default guardians of the child. However, not all families fit into these categories. As such, there is a need for a definitions for the role of a guardian. In being a guardian of a child, the law requires this induvial to care about the best interests of the child. This is especially necessary when the child may not have the ability to advocate for themselves.
What is Guardianship?
Guardianship is when an individual has certain rights, responsibilities and powers with respect to the child.
A guardian is entitled to, and responsible for the care for the child’s physical, psychological and emotional development. In addition, they also ensure that the child has medical care, food, clothing and shelter. They have the power to make decisions on the child’s day-to-day life, where they will live, their education and extracurricular activities, who they can live with, etc.
Despite a guardian having the power to make multiple decisions, their powers are not absolute. There are laws that can limit the guardian’s powers. In addition, if the guardian abandons or neglects the child, then Child and Youth Services can become involved. They take steps to protect the child. Lastly, if the guardians are unable to agree on how powers and responsibilities will work between them, then the court will make the decision for them through a Parenting Order or a Custody and Access order.
Who Can Become a Guardian of a Child?
There are some requirements to be eligible to be a guardian. If you gave birth to the child, you are already a legal guardian. On the other hand, if you are a parent who is not a guardian or and adult who has had care and control over the child for at least 6 months.
You would be considered a guardian under the following conditions:
- You and the other parent lived together at the time the child was born, either for at least 12 months in a row or were in an adult interdependent relationship
- You and the other parent lived together after the child was born and had an adult interdependent relation within 1 year of discovering the child
Married or Divorced
- You are married to the other parent when the child was born or within one year of discovering the child
- If you and the other parent got divorced during the pregnancy with less than 300 days before the child was born
- If you voluntarily gave money or offered financial help to the other parent or child
- If you gave non-financial support to the other parent or child
- Gave or offered money or non-financial support to the birth mother
Order, deal or behaviour
- You or the other parent have a court order indicating that you are the guardian or only parent
- There is a written deal with the other parent indicating that you are a guardian
- There has been behaviour to show that you want to take on the responsibilities of a child’s guardianship
Different Types of Guardianship of a Child
The courts can provide you with various forms of guardianship
Temporary Guardianship Orders (TGO)
A TGO is when the court determines that a child can return to the home after a reasonable period of time if the child is at risk to stay in the custody of their current guardian. Until then, someone else will be a guardian of the child. If the child in under the age of 6, then the TGO can last for a total of 6 month. If the child is over the age of 6, then the TGO can last for up to 12 months. The courts can extend these time periods if they deem it is necessary to do so.
With a TGO, the Director of Children’s Services usually becomes a joint guardian of the child and the guardian or any others living in the home may be subject to parenting or psychological assessments.
Permanent Guardianship Orders (PGO)
If a Court thinks that the survival, security and development of a child will not be protected by their current guardian, the court can grant a PGO. A PGO is different from a TGO in that the court thinks the possibility of returning the child to their guardian in a reasonable time is NOT likely. In a PGO, the Director of Children’s Services becomes the sole guardian of the child.
Arguing against a PGO is very difficult and the law is complicated so if you are dealing with a PGO please reach out to us at 403-255-8810, our toll-free line 1-877-225-8817, or for a quicker response, email us directly here.
Private Guardianship Order
A private guardianship order falls under the Child, Youth and Family Enhancement Act, unlike the TGO and PGO which fall under the Family Law Act. The Act sets out the following components that are necessary for a guardianship application:
- A statement that the child was in the continuous care of the applicant for at least three months prior to the application. The court can waive this requirement if it would serve the best interests of the child to do so;
- A statement that the applicant is willing and able to serve as the child’s permanent guardian;
- A finding that the guardianship is in the best interests of the child;
- A home study report showing the suitability, ability and willingness of the applicant to be the child’s permanent guardian. In cases where the child is the subject of a Permanent Guardianship Order, The Director will complete the report.
Help with Guardianship of a Child
Call today for help in making an application to the courts for child guardianship. We help with all stages of court applications. This includes everything from understanding your position, to the granting of the final order. Great importance exists in getting legal information early in the process. Call us today in our Calgary, Alberta Office at 403-225-8810 (also, toll-free at 1-877-225-8817), or, for a quicker response, email us directly here.