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Birth parents of a child are typically considered to be the child or children’s guardians automatically. This automatic determination can be impacted by a number of factors. In cases where an adult who is not a child’s parent wishes to become their legal guardian, an application must be made to the court in order to be legally declared the guardian of a child. At Bastion Estate Law, Robert Douglas and his team of legal professionals offer legal services that include finalizing guardianship of minor children.

What is Guardianship?

As a legal guardian of a child, it is your right and ultimate responsibility to make important decisions for the child. In Alberta, a child’s biological or adoptive parent is automatically considered to be their guardian if the parent acknowledges they are the child’s parent and demonstrates intent to assume the responsibility guardianship for a child within one year of learning out about the pregnancy.

Intent to assume the responsibility of guardianship includes:

  • Being married to the other parent at the time of the child’s birth
  • Marrying the other parent after the child is born
  • Being previously married to the other parent but divorced within 300 days of the child being born
  • Being the interdependent adult partner of the other parent when the child is born or becoming one after the child is born
  • Obtaining a signed and witnessed an agreement with the other parent to be a guardian to the child
  • Living with the other parent for one year when the child is born
  • Voluntarily providing financial support to the birth mother both during or after her pregnancy
  • Providing financial support for the child

Sole Guardianship

In cases where only one parent meets the criteria to automatically be considered the guardian of a child, and when no other person has been added through a court order, the child is considered to have one guardian. This person has the sole responsibility to make decisions on behalf of the child.  There are times when it may become necessary to obtain a court order confirming the guardian is the “sole guardian.” In such cases, the court will grant a parenting order (sole guardianship) which enables the guardian to make decisions without the other parents’ permission.

Why Do I Need to Address Guardianship in My Will?

In Alberta, all children must have a guardian. In most instances this is addressed by the parents being deemed to be the legal guardians of a child. Upon the death of a child’s legal guardians, subsequent guardianship of children is not determined by the Wills and Succession Act (Alberta). However, the Family Law Act (Alberta) does allow a child’s guardian to appoint another person to be the child’s guardian in their Will to take effect following their death. When a parent’s guardianship wishes are not known, such as in the case of parents dying without a Will (known as “dying intestate”), guardianship of children will ultimately be determined by a Court Order.  While a court will always try to accomplish what it considers to be in the best interest of the child or children, a judge who has never met the deceased or incapacitated individual and has no first-hand knowledge of their family, friends and family history, will determine who ultimately ends up caring for the child/children.  This process is time-consuming and can greatly increase the stress and emotional impact that children and others experience when faced with the loss of a parent or parents. A thorough Estate Plan prepared by a qualified estate planning professional addresses guardianship of minor children. In addition to guardianship, an estate professional will ensure that the estate plan deals with a number of other issues involving minor children, including the administration of assets for minors and the cost-effective methods to transfer assets inter-generationally.

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