Is an Unmarried Father Automatically a Guardian in Alberta?

If you are a father who was never married to the child's mother, you may wonder what legal say you have. Many fathers assume being named on a birth record or paying support settles it. In Alberta, the question is really whether you are a guardian.

This article explains in plain terms when an unmarried father is a guardian under the Family Law Act, what other routes exist, and what to do if you are not one. Your own facts matter a great deal, so a lawyer can confirm where you stand.

This article covers the law of Alberta.

Why guardianship matters more than parentage

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 of her child under the Family Law Act. A father who is not the birth mother has to fit one of the routes below, or apply to the court.

When a father is automatically a 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.

There are other routes as well. Some depend on timing, so the details are worth checking with a lawyer.

• A parent who married the mother after the birth, or was in an adult interdependent relationship with her after the birth, qualifies where this occurred within 1 year of finding out about the child.
• A parent who gave financial or non-financial support, or whose behaviour showed intent to take on guardianship responsibilities, qualifies on the same 1 year timing.
• A parent who was divorced from the mother during the pregnancy, with less than 300 days before the birth, also qualifies.
• A parent in an adult interdependent relationship when the child was born qualifies 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 is also a guardian if a court order says he is the guardian or only parent, or if there is a written deal 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, 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).

Guardianship applications can be filed at any court in Alberta if there is no existing action with the other party. If there is one, you 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.

Guardianship, parenting time and contact are different

Being a guardian does not by itself settle the schedule. 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, which 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. 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.

A person who is not a guardian applies for a Contact Order instead. A contact order sets out visits, calls or letters and does not give the person rights or responsibilities over the child.

What to do next

• Write down your timeline: where you lived, when the child was born, and when you found out about the child.
• Gather proof of any support you gave and any written agreement or court order.
• Check whether you fit one of the automatic routes before filing anything.
• If you do not, ask a lawyer whether a Guardianship Order or a Contact Order suits your situation.
• Keep copies of every form you file and every document you receive.

Frequently asked questions