Is an Unmarried Father a Guardian in Alberta? Family Law Act

If you are an unmarried father in Alberta, you may wonder whether you have a legal say in major decisions about your child. The answer depends less on whether you are named as a parent and more on whether you are a guardian.

This article explains in plain words how guardianship works under the Family Law Act, when a parent is a guardian automatically, and how a parent who is not a guardian can apply. Your situation may have details that change the answer, so a lawyer can confirm where you stand.

This article covers the law of Alberta.

Guardianship, not parentage, decides who makes decisions

In Alberta, the ability to make decisions about a child is tied to guardianship, not to 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 of her child under the Family Law Act. For a father who is not married to the mother, the question is whether he meets one of the routes to guardianship below.

When an unmarried father is a guardian automatically

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.

There are other routes as well. These include the following:

• A parent who married the mother after the birth, or was in an adult interdependent relationship with her after the birth, can qualify. So can a parent who gave financial or non-financial support, or whose behaviour showed intent to take on guardianship responsibilities. In each case this must have happened within 1 year of finding out about the child.
• A parent who divorced the mother during the pregnancy, with less than 300 days before the birth, also qualifies.
• A parent in an adult interdependent relationship with the mother when the child was born qualifies if the relationship lasted 3 years. If it lasted under 3 years, he qualifies where both signed an Adult Interdependent Partnership Agreement or the two had a child together.
• A parent is also a guardian if a court order says he is the guardian or the only parent, or if there is a written agreement with the other parent saying he is a guardian.

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

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

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

What guardianship means after separation

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. That order can divide parenting time, assign specific responsibilities, or set a process for resolving future disputes.

If guardians cannot agree, a judge decides based on the child's best interests, aiming to protect the child's physical, psychological and emotional safety. Factors include the child's care history, the child's views, the benefit of relationships with both parents or guardians, and any history of family violence.

If you are not a guardian, for example a grandparent or a non-guardian parent, you can apply for a Contact Order. It sets out visits, calls or letters and does not give you rights or responsibilities over the child.

What to do next

• Write down your relationship timeline with the other parent: when you lived together, married or signed any agreement, and the child's birth date.
• Gather any court orders and any written agreement that mentions guardianship.
• Note the support you gave, financial or otherwise, and when you learned about the child.
• Check whether a court action already exists, since that affects where you file.
• Speak with a family lawyer before filing, especially if you are unsure whether you already qualify as a guardian.

Before filing a Family Law Act application in the Court of King's Bench, you generally must take the Parenting After Separation course. Whether it applies to your guardianship application is worth confirming with a lawyer.

Frequently asked questions