Child Custody for Unmarried Parents in Alberta: What Are the Rights and Legal Options

Every child in Alberta is subject to guardianship. Whether a particular parent is a guardian is a question the Family Law Act answers with two conditions and a time limit.

A parent is a guardian if both conditions are met. The parent has acknowledged that they are a parent of the child, and the parent has demonstrated an intention to assume the responsibility of a guardian. The second condition carries its own limit: that intention must be demonstrated within one year of the parent becoming aware of the pregnancy or of the birth, whichever is earlier.

Both conditions have to be satisfied, and the time limit belongs to the second of them. A parent who meets one and not the other is not a guardian under that provision.

The Act then sets out the ways that intention is demonstrated. Each of these is a circumstance the Act names.

Marriage and adult interdependent partnership

1. 1

   Being married to the child's other parent when the child is born.

2. 2

   Being the other parent's adult interdependent partner when the child is born, or becoming one after the birth.

3. 3

   Marrying the other parent after the birth.

4. 4

   A marriage to the other parent that ended by death, by a declaration of nullity or by divorce within 300 days before the birth.

Living together

Cohabiting with the other parent for at least 12 consecutive months during which the child was born.

An agreement

Entering an agreement with the other parent to be a guardian of the child, where that agreement meets the requirements the regulations set.

Carrying the child, and assisted reproduction

Carrying the pregnancy to term. Being a parent of a child born of assisted reproduction, as the Act provides for that.

Supporting the child or the birth mother

1. 1

   Voluntarily providing or offering reasonable support to the birth mother during or after the pregnancy, other than under a court order.

2. 2

   Voluntarily providing or offering reasonable support for the child, other than under a court order.

Any other circumstance a court finds

On an application, any other circumstance the court finds demonstrates that the parent intended to assume the responsibility of a guardian.

Where the pregnancy resulted from a sexual assault, the parent who committed the assault is not eligible to be a guardian under that section. The court may make that finding whether or not a charge was laid or a conviction obtained.

If the conditions are not met, there is still an application. A parent who is not a guardian may apply for a guardianship order. So may an adult who has had the care and control of the child for more than six months. What the court then considers on that application is a question for a lawyer.

Where a child has more than one guardian, the Act says what each owes the other and what happens when they cannot agree.

Each guardian must give information to another guardian at that guardian's request, and each must use their best efforts to co-operate on issues affecting the child. Those are duties the Act places on guardians directly, not descriptions of good practice.

Where guardians cannot agree in exercising the powers, responsibilities and entitlements of guardianship — and, where those guardians are the parents, are living separate and apart — the court may make a parenting order on the application of one or more of them.

An allocation to one guardian does not end the other's entitlement to be told. Unless the court orders otherwise, where a power or responsibility of guardianship is allocated to one guardian, the other guardian or guardians remain entitled to make inquiries and to be given information about any significant matter arising in connection with the exercise of that power or responsibility.

What a parenting order can allocate, and how parenting time and decision-making responsibility work under each of the two Acts, is set out in parenting time after separation.

Where separation between partners who were not married raises property and support questions alongside the child, those are covered in common-law separation in Alberta.

How parenting time, decision-making responsibility and guardianship fit together across the two Acts is set out in parenting, decision-making and child custody.