What Decision-Making Responsibility Means for Parents in Alberta

After separation, one of the first practical questions is who gets to make the big calls about your child, such as health care, schooling and religion. The law has a specific term for this.

This article explains what decision-making responsibility means, how it can be shared, and how Alberta's guardianship rules connect to it.

This article covers the law of Alberta.

What the term means

Under the Divorce Act, decision-making responsibility means the responsibility for making significant decisions about a child's well-being. Common examples people think of are health, education and religion, though the exact list depends on the order or agreement.

It is different from parenting time, which is the time a child spends in the care of a person. Unless the court orders otherwise, the person who has parenting time has exclusive authority to make day-to-day decisions affecting the child during that time.

Sole, joint or divided

Decision-making responsibility may be given to either spouse, to both spouses, or to a person other than a spouse who is a party to the application. It can be sole or joint, and can be divided by subject.

Whatever the arrangement, a person given decision-making responsibility must exercise it consistently with the child's best interests.

How a court decides

When a court makes a parenting order or contact order under the Divorce Act, it considers only the child's best interests. In applying the listed factors, it must give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

• The child's needs for their age and stage, including stability, and the child's relationships with each parent, siblings, grandparents and others.
• Each person's willingness to support the child's relationship with the other parent, and each person's ability to meet the child's needs and to communicate and cooperate.
• The child's views and preferences, given due weight according to age and maturity, unless they cannot be ascertained. The Act sets no age at which a child decides.
• Any family violence and its impact, including its nature, seriousness and frequency.

The court also gives effect to the principle that a child should have as much time with each spouse as is consistent with the child's best interests. That is a guiding principle under best interests, not a presumption of equal time. Where safety is a concern, the child's safety, security and well-being take priority.

Guardianship in Alberta

In Alberta, the ability to make decisions about a child is tied to guardianship, not parentage status. A guardian under the Family Law Act is a guardian for all legal purposes, and in most cases a child's parents are also guardians.

A birth mother is already a legal guardian. A parent who is not the birth mother can be a guardian automatically if, for example, he lived with the mother for at least 12 months including when the child was born, or was married to her when the child was born.

• A court order may say he is the guardian or only parent, or a written deal with the other parent may say he is a guardian.
• A parent in an adult interdependent relationship when the child was born may qualify if the relationship lasted 3 years, or under 3 years where both signed an Adult Interdependent Partnership Agreement or the two had a child together.
• A parent who married the mother after the birth, was in an adult interdependent relationship after the birth, gave financial or non-financial support, or showed by their behaviour an intent to take on guardianship responsibilities may qualify where this happened within 1 year of finding out about the child. A parent who divorced during the pregnancy, with less than 300 days before the birth, also qualifies.

A parent who is not a guardian, or an adult who has had care and control of the child for at least 6 months, can apply for a Guardianship Order using Claim – Family Law Act (CTS3459) and Adult's Statement – Guardianship of Child (CTS3484).

Information, plans and disagreements

Unless the court orders otherwise, a person with parenting time or decision-making responsibility may request information about the child's well-being, such as health and education, from the other person who has it or from third parties.

After separation, guardians who agree can keep exercising guardianship powers without a court order. If they disagree, either can apply for a parenting order that can assign specific responsibilities or set a process for resolving future disputes.

Which law applies depends on whether a divorce has been started. You can apply for a Family Law Act parenting order if no divorce action has been started by you or the other guardian and the child lives in Alberta. Where a divorce action has started, parenting is dealt with under the Divorce Act instead.

If the parties submit a parenting plan, the court must include it in a parenting order unless it is not in the child's best interests. A parent who intends to change their residence or the child's must give written notice to others with parenting time, decision-making responsibility or a contact order.

Passports are one example. All parents or legal guardians must sign the form, but where an order or agreement exists, only the person with decision-making responsibility can apply. If parents share decision-making responsibility, either parent can apply alone.

What to do next

• Check whether you are a guardian, especially if you were not married to the other parent.
• Read any existing order or agreement to see who holds decision-making responsibility.
• List the decisions you expect to face, such as school, health care and religion.
• Consider a parenting plan that says how disputes will be resolved.
• Get legal advice if you are unsure of your status or the other parent disagrees.

How all of this applies depends on your situation, including whether you were married and whether a divorce has started, so it is worth confirming with a lawyer before you act.

Frequently asked questions