In Alberta, the ability to make decisions about a child is tied to guardianship status, rather than parenting status. This is the case whether the guardians are in an intact relationship or not. Parents of a child are presumed to be guardians of the child if they were married, cohabited for 12 consecutive months (during which the child was born), or were adult interdependent partners (common-law) before or after the child was born.
According to the Family Law Act, a parent will automatically become a guardian by operation of law provided that the parent becomes aware of the pregnancy or becomes aware of the birth of the child within 1 year. Furthermore, the Family Law Act provides that a parent is a guardian of the child if they have acknowledged that they are the parent of the child, and have demonstrated an intention to assume responsibility as a guardian.
Despite a biological mother’s intention to exclude a biological father and her failure to advise him of the pregnancy or the child’s birth, a biological father automatically becomes a parental guardian if he is aware of the pregnancy or birth of the child within 1 year. Failure to acknowledge or failure to consistently acknowledge the child within the 1 year period by the father would render the subsequent application for guardianship unsuccessful.
There are additional rules for children conceived with human-assisted reproduction (such as when there is a surrogate mother).
Legal guardianship gives an adult the right to make decisions for or about a child, including the following:
According to the Child, Youth and Family Enhancement Act of Alberta, any parent or guardian must not neglect a child who is under 18 years of age, and who is under their care. Neglect is considered to be any of the following:
A child needs protection in any situation of neglect (listed above). If any person has reasonable and probable grounds to believe that a child needs protection, that person must report the matter to authorities, such as the police.
As a parent or guardian, you can be fined, imprisoned, or both for not properly caring for your child under both of the Criminal Code and the Child, Youth and Family Enhancement Act. Alberta Children and Youth Services can seize your child with or without a warrant if it is reasonably suspected that the child is neglected. A peace or police officer may report an offense committed by a child to the Director of Alberta Children and Youth Services. The Director will investigate the report and take the appropriate measures necessary, including placing the child in protective services.
You may discipline your child if the punishment is reasonable. If punishment goes too far, your acts may be considered as neglect of the child.
By law, children living in Alberta must attend school between the ages of 6 to 16 years old. Public education is provided free of charge up to the end of high school, for children and people less than 20 years of age.
Generally, a child is sent to a public school designated by the local school board. You may choose to educate your child at home. If you would like to educate your child at home, you must apply to the school board for approval.
Medical treatment for your child under the age of 18 years generally requires a guardian’s permission.
In an emergency, medical professionals will do what is necessary to save the child’s life, even if you have not yet given your permission. If you refuse to give permission in a medical emergency or for necessary medical treatment, the child may become a ward of the Court, as he or she may then be considered neglected. Medical treatment that is considered essential will vary. For example, if you refuse to allow your child to be vaccinated you could be found to have neglected your child. For more information on this area, it is advisable to consult a lawyer.
You may not change your child’s name without their permission if the child is over the age of 12. If you are divorced and have custody of a child from a former marriage, you require the consent of your ex-spouse to change the child’s name or a Court Order dispensing with the need for consent of your ex-spouse.
Your child cannot leave home without your permission until they are over the age of 16.
Anyone under the age of 18 requires their parent or guardian’s permission to marry. Usually, the consent of both parents is required, but this may be dispensed with. For example, if the child’s parents are divorced and only one parent has sole custody of the child.
If a parent or guardian refuses to grant their permission, the child can apply to the Court to dispense with your permission. To dispense with permission, the child would have to demonstrate that the parent or guardian was unreasonable in not giving consent.
There is no set age in Alberta for when a parent can legally leave their child unsupervised. Some Alberta courts have held that, in some circumstances, children under the age of 12 should not be left unattended by their parents.
Lack of supervision may amount to neglect (and the intervention of authorities) where children are placed at risk of harm.
The following factors may be considered to determine whether a child has been neglected when left unsupervised:
Custody is the rights and responsibilities of the children’s care and upbringing. If the parents separate, both parents continue their guardianship rights but must make arrangements for custody of the child.
There are various types of custody, including joint custody, sole custody, shared custody or shared parenting, and split custody or split parenting. Parents should agree to the type of custody that will be in the “best interests” of the child upon separation.
Child support is provided to children under 18 years of age and who have not withdrawn from their parents’ charge. Child support is also provided if the child is over 18 years of age but is unable, because of illness, disability, or other cause, to withdraw from their parents’ charge or to obtain the necessaries of life.
The amount of child support payments depends upon many things, including a guardian’s ability to pay and the financial needs of the child.
If child support is not paid voluntarily, a complaint can be made against the non-paying parent. A mother can make a claim any time after she becomes pregnant. Once a complaint is made, the Maintenance Enforcement Program (MEP) will contact the other parent. An attempt to make a child Support Agreement will be made with the non-paying parent. A Support Agreement for child support may be made between the parents, or a Court Order for support can be made by a Judge. Once the agreement is signed, legal action can be taken if the parent does not make the support payments.
There is no connection between financial support and access to children. If a parent does not pay support, you cannot refuse them access to the child. In the same way, if your spouse refuses to allow you visits with the child, you cannot withhold the support money.
If this happens, you may apply to Court for an Access or Support Order if you do not have one. If you want to have a Judge rule on the enforcement of existing Orders.
This topic covers some of your parental rights and obligations. If you require further information on specific questions you may contact the Lawyer Referral Service for legal counsel at 403-228-1722.