Is an Unmarried Father a Guardian of His Child in Alberta?

Many unmarried fathers assume that being the father is enough to make decisions for a child. In Alberta, the answer depends on guardianship, and not every father is automatically a guardian.

This article walks through the situations where a father is a guardian, what to do if you are not sure, and how to apply if you are not. Details of your own history matter here, so a lawyer can confirm where you stand.

This article covers the law of Alberta.

Why guardianship matters

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 guardian of her child.

After separation, guardians who agree can keep exercising guardianship powers without a court order. If they disagree, either guardian can apply for a parenting order. If you are not a guardian, your options are different, so it is worth sorting this out early.

When a father is automatically a guardian

Alberta guidance gives several situations. 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. Other routes include the following.

• Being in an adult interdependent relationship when the child was born, 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.
• Marrying the mother after the birth, or being in an adult interdependent relationship after the birth, where this occurred within 1 year of finding out about the child.
• Giving financial or non-financial support, or acting in a way that showed intent to take on guardianship responsibilities, within 1 year of finding out about the child.
• Being divorced during the pregnancy with less than 300 days before the birth.
• Having a court order that says you are the guardian or only parent, or a written deal with the other parent saying you are a guardian.

These rules turn on dates and facts, such as how long you lived together and when you learned of the child. If your situation is close to the line, a lawyer can help you assess it.

If you are not a guardian: applying for a Guardianship Order

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. The forms are Claim – Family Law Act (CTS3459) and Adult's Statement – Guardianship of Child (CTS3484).

You can file at any court in Alberta if there is no existing action with the other party. If there is one, file at the same court and location. In Greater Edmonton, Calgary, Red Deer or Grande Prairie the Family Justice Strategy may apply first, and if you do not attend court the judge may make an order in your absence.

What if you only want to see the child?

Someone who is not a guardian, such as a non-guardian parent or a grandparent, applies for a Contact Order using Claim – Family Law Act, Statement – Contact and Affidavit of Service – Applicant. A contact order sets out visits, calls or letters and does not give the person rights or responsibilities over the child.

Guardianship and contact are different things. Guardianship carries decision-making standing, while contact is limited to the time or communication the order sets out. Which one you need depends on what you are trying to achieve.

What to do next

• Write a timeline: when you lived with the mother, any marriage or partnership, and when you learned about the child.
• Collect proof of support or involvement, such as payments, messages and records.
• Look for any court order or written agreement naming you as a guardian.
• Check whether the Family Justice Strategy applies where you would file.
• Get advice if the other parent disputes your guardianship or if safety is a concern.

Frequently asked questions