Parenting, Guardianship, Custody & Access: What does it mean in Alberta Family Law?

What’s the difference between a parent and a guardian? Are custody and access the same thing?

Child custody and parenting in Alberta are governed by the Divorce Act and the Family Law Act. Defining the terms used in these laws is crucial to understanding how family law applies to specific situations and people.

What is parenting?

Parenting, a term used in the Family Law Act, applies when a child’s guardians don’t live together. In this situation, some guardians create a parenting agreement or parenting plan to define how time with the child will be shared and how decisions will be made.

When guardians can’t agree on a parenting decision, they may choose to go to court where a judge will make a decision set out in a Parenting Order.

What is guardianship?

Guardianship, another term used in the Family Law Act, is essentially about decision-making power. A guardian has the right, responsibility, and authority to make decisions on the child’s behalf. These decisions can include the child’s living arrangements, education, work, extracurricular activities, and cultural, linguistic, religious, and spiritual upbringing.

A guardian is responsible for the child’s needs and development—physical, psychological, and emotional. This includes the provision of food, clothing, shelter, and medical care. A guardian has a right to legal notices, health information, and education information for the child, and has the authority to respond and provide consent on matters pertaining to the child.

Both parents are guardians if they:

• Were married to each other at the time the child was born
• Were married to each other, but divorced less than 300 days before the child was born
• Lived together for at least 12 months and the child was born while they were living together
• Lived together for less than 12 months, but were in an adult interdependent relationship, and the child was born during that relationship
• Married or became adult interdependent partners after the child was born, but within 1 year of finding out about the pregnancy or birth of the child
• Signed an agreement that they would both be guardians

If the parents are not living together or married, a parent is a guardian if that parent shows an intention to assume the responsibilities of a guardian within 1 year of finding out about the pregnancy or birth of the child. A parent might show this intention in various ways, such as:

• Giving birth to the child
• Voluntarily paying or offering to pay support to the birth mother or for the child
• Giving some other kind of support or offering to give such support to the birth mother or for the child

Alberta law allows for the court to appoint someone to be a guardian even if that person is not a parent of the child. A child can have more than 2 guardians.

What is custody?

Custody is the legal authority to make decisions about the child and the responsibility to care for the child. A custodial parent has the right to make decisions about the child’s schooling, religion, medical care, and other decisions about the child’s daily life and upbringing.

There are 4 types of custody in Alberta.

1. Joint custody: Both parents are responsible for the child’s upbringing and make major decisions about the child’s life together.
2. Shared custody: Both parents have custody, but each parent’s custodial power is more clearly defined.
3. Split custody: For situations where there is more than one child and the children don’t all live with the same parent.
4. Sole custody: The parent with whom the child lives has the sole decision-making authority for the child.

Learn more by reading What is the difference between custody and access in Alberta Family Law?.

What is access?

Access is the term used by the Divorce Act to refer to the legal right of the child and parent to spend time together. A child has the right to access their parents, and a parent has the right to access their child. Even a parent without custody has a right to access, but access does not include decision-making authority.

There are 4 main types of access:

1. Reasonable—flexible and decided between the parents
2. Conditional—restricted, such as prohibiting drug or alcohol use during an access visit
3. Supervised—requires the presence of a supervisor at all times during the access visit
4. Specified—structured with scheduled days and times

A parent with access does not have guardianship rights, but may make day-to-day decisions for the child when the child is in their care, such as what to eat or what activities to do. An access parent may be involved in bigger decisions—such as medical care or education—if they have joint custody.

Other family members, such as grandparents, can be granted access.

What is the best parenting arrangement for your child?

The best parenting arrangement for your child is one you can agree on and commit to with your child’s other parent or guardians. But sometimes this proves difficult or impossible without the help of a third party. In this case, you have 4 options:

1. Mediation—Trained mediators (through Alberta Justice or Alberta Family Mediation Society) facilitate discussions, explore options, and negotiate an agreement without bias.
2. Custody Assessment—A home study where a social worker, psychologist, or psychiatrist observes the family situation and relationships, then provides recommendations for a parenting plan.
3. Lawyer-Assisted Settlement—The parents and their lawyers discuss custody and access arrangements informally to avoid taking the case to court.
4. Court—The Court decides on parenting arrangements.

Alberta courts recognize that parents know what’s best for their child. But if the matter of parenting goes to court, the judge must make a decision based only on the information that’s presented. This information doesn’t always accurately represent the situation. So it’s in your child’s best interest to take the matter to court only as a last resort.

Legal Help for Parenting Arrangements, Guardianship, Custody & Access in Calgary

The award-winning family law lawyers at Osuji & Smith can help you resolve custody and access issues, or help you create a parenting plan or agreement. We have over 41 years of experience in finding solutions for families. We’re prepared to answer all your family law questions and provide support. Contact us today.