Family lawyers often receive phone calls from grandparents or aunts and uncles who tell us that they are providing a significant amount of care for grandchildren or nieces and nephews. Often, they are providing many meals, driving children to and from school, daycare, after-school activities and doctor’s appointments, and making sure that homework is being done in the evenings. In short, they are carrying all of the responsibilities of parenting and, at the same time, they do not have the ability to participate in the decision-making for the children. This is true, even where they believe that the decisions are not being made in the best interests of the children. These extended family members usually ask us if there is some legal way they can become involved in the decision-making for the children. We advise that, in Medicine Hat, Alberta, what they need is an Order from a Court giving them guardianship.
The Family Law Act is the legislation in Alberta that deals with the concept of Guardianship. This Act provides that the mother and father are both guardians of a child, as long as they meet one of the following criteria:
1. they were married at the time the child was born;
2. they were previously married and were divorced less than 300 days before the child was born;
3. they married each other after the child was born;
4. they lived together for 12 months during which time the child was born; or
5. they were adult interdependent partners when the child was born, or became adult interdependent partners after the child was born.
If they do not fall into one of these categories, the child’s guardian is the parent with whom the child usually resides, or both parents if the child lives alternately with each parent. If both parents agree, they can both remain guardians of a child, even after the child begins to live primarily with only one of them.
There are two other ways to become guardians of a child. The first is when one of the parents appoints a person to be the guardian of a child after the death of that parent. Typically, this is done when a parent names a guardian in his or her Will. These testamentary guardians have the same responsibilities and entitlements that the parental guardian had at the time of his or her death.
The second way to become a guardian is for a person who is not the parent of the child to ask the Court to be appointed as a guardian. Usually, this requires that the person applying has had the child in his or her care and control for at least six months. Step-parents and extended family members often use this method to become guardians of children.
In the next column, we will discuss the powers and responsibilities of guardians.