Legal Guardianship

Please provide copies of any orders or agreements addressing guardianship rights, responsibilities, and entitlements or otherwise affecting the custody of or access to your child or child’s information, to the principal of your school.

Effective October 2005, amendments to the School Act provide that a parent is the guardian as set out in section 20 of the Family Law Act (FLA); Part 5 of the Child Welfare Act; Part 1, Division 5 of the Child, Youth and Family Enhancement Act; or section 23 of the FLA; a temporary or permanent guardianship order under the Child Welfare Act; or an order of the court or an agreement made in accordance with family law legislation.

While a parent is usually the legal guardian of the child, that is not always the case. Guardianship rights can be shared by parents or can be lost. As a student’s right to attend any particular school is based upon the residence of the “parent”, and as it is the parent who exercises the various powers, responsibilities and entitlements as a guardian under the School Act, it is important that a school board determine who the legal guardians are for any particular child.

The FLA provides that, subject to any order of a court regarding guardianship of the child, the mother and father of the child are both the guardians of the child where the mother and the father:

  • Were married to each other at the time of the birth of the child
  • Were married to each other and the marriage was terminated by a decree of nullity of marriage, or a judgment of divorce granted less than 300 days before the birth of the child
  • Married each other after the birth of their child
  • Cohabitated with each other for 12 consecutive months during which time the child was born; or 
  • Were each other’s adult interdependent partners at the time of the birth of their child or became each other’s adult interdependent partners after the birth of their child.

If the above does not describe your relationship, guardianship is determined based on residence of the child. Section 20(3) of the FLA provides that the mother and the father are both the guardians of the child until such time as the child usually begins to reside with one of the parents, at which time that parent becomes the sole guardian of the child; or if the child lives with both parents, or alternatively, with each parent for substantially equivalent periods of time, both parents become the guardians of the child. According to the School Act (section 44), where a child’s guardians live separately and in different school jurisdictions, the guardians shall choose one or the other of the school jurisdictions as the school system where the child will attend.

Despite subsection 20(3) of the FLA, if both parents agree in writing, both parents continue to be the guardians of the child even after the child begins to usually reside with only one of them. A parent with whom the child has usually resided for one year is the guardian of the child, even if the child no longer resides with that parent.

The FLA is the provincial legislation that defines guardianship rights in Alberta. Parental rights may also be described using the terms of custody and access in cases where the parties are divorced or have commenced legal proceedings under the Divorce Act. The School Act provides that where a person claims to be a parent or guardian, or claims the existence of any limitation on the authority of a parent or guardian, the onus is on that person to provide proof of the claim.