Things to Consider When Appointing a Guardian for Your Children

Things to Consider When Appointing a Guardian for Your Children

One of the most difficult yet important decisions parents can make is choosing a guardian for their children in the event of their untimely death. Most of us do not like to imagine a time when we cannot take care of our families. However, choosing a guardian can give you peace of mind that someone you trust will protect your loved ones if the unthinkable happens.

If you fail to appoint a replacement guardian, the court will choose one for you if necessary who may not be the person you or your child would have preferred. An Edmonton family lawyer may be able to help you understand your options for guardianship and assist with the necessary steps.

What is a Guardian

A guardian is an adult who is legally responsible for a child's well-being, including their physical, psychological, and emotional development and daily needs. This involves providing food, clothing, shelter, and medical care, as well as deciding where children will live, their spiritual upbringing, and what kind of education they receive.

Governed by the Family Law Act, guardians are entitled to be involved in any significant decisions regarding the child. They must also observe all laws related to a child's care, as parents would.

Choosing a Guardian

Most parents choose their child's guardian from their close family and friends. Ideally, this is someone with whom the child already has a close relationship. However, if the child is at least 12 years old, the court will ask the child's opinion before appointing or approving a guardianship order, so it is important to consider your child's wishes.

There are many considerations when choosing a suitable guardian for your children. First, you should think carefully about the care you would like your children to receive. For example:

  • What values and beliefs do you want to instill in your children?
  • Are there cultural or religious teachings and traditions that are important to you?
  • Do you have strong dietary or other health preferences for your children?

In some circumstances, appointing more than one guardian for a child's different needs might make sense. For example, this could involve a primary guardian to care for their day-to-day needs and a second guardian responsible for a specific aspect of the child's care, such as their finances or legal concerns.

Important First Steps

If you are married or have a co-parent, it's best to talk with them and ensure you are on the same page. Then, you can each list your top contenders and go through them together. Consider candidates with the following factors in mind:

  • Do they live nearby? It might be traumatic for your children to leave their community and all they know after your passing.
  • Are their financial circumstances adequate given your children's needs?
  • Are they healthy and fit enough to take on the responsibilities of guardianship? Is their age a factor, given the number of children you have and how old they are?
  • Do they already have or plan to have children of their own, and would a blended family work?
  • Can they provide a safe and stable lifestyle?

Once you have selected one or more candidates, it is wise to initiate a conversation about guardianship and whether they would consider taking on the responsibility. Explain why you have chosen them as potential guardians and have an honest and open discussion about your wishes for your children's future and upbringing.

While potential guardians may be flattered that you asked, guardianship is a serious and long-term responsibility, and they should not make the decision lightly. So, let them think about it. You may also choose more than one guardian as a backup should your top choice no longer be an option if the time comes.


Once you have chosen a guardian and they have agreed, it is time to make it official. The easiest way to document guardianship is by updating your will if you have one. If you are considering appointing a guardian for your children, an Edmonton family lawyer may be able to help you understand your options.

Contact our Edmonton Family Lawyers Today

Contact us today for more information and to schedule a consultation. Our Edmonton family lawyers will be pleased to assist you with all your family law proceedings.

* Please note that the information in this article is not intended as legal advice but rather as a general overview of family law. If you are seeking legal advice, please consult with a lawyer.

How Do I Change or Appeal A Divorce Related Child Custody Order?

How Do I Change or Appeal A Divorce Related Child Custody Order

While all court granted orders in Alberta are generally final – there are certain circumstances in which you may appeal a child custody order. When you appeal a child custody order – the courts will review the original decision and in some cases they may reverse or change the order. Having a family lawyer to handle an appeal for a child custody order may help to reverse or change your order.

In the Court of Queen’s Bench – appeals can be filed under the Family Law Act and Child Youth and Family Enhancement Act. There are time limits that you need to be aware of. For example under the Divorce Act – there is an appeal period that is clearly defined which may be relevant towards your case.

Steps To Appeal Your Child Custody Order

While every legal situation is unique – your family lawyer will offer legal guidance on the best way to approach your appeal. Below is a general overview of how the appeals process works in Alberta.

  1. Notice of Appeal: The first step is to prepare a Notice of Appeal. Filing a Notice of Appeal will outline the basis for your appeal. We recommend you hire a lawyer to handle this aspect of your appeal.
  2. Obtain Court Transcripts: Your lawyer will also order original transcripts from court hearings.
  3. Filing the Notice of Appeal and Form: At the Court of Queen’s Bench location closest to you – your lawyer will file copies of your Notice of Appeal, transcript order and payment. Your lawyer will also be familiar with the timelines associated with this process.
  4. Serve your Notice of Appeal:Your lawyer will then serve your Notice of Appeal on the respondent (or other party).
  5. Court Appearances: Your lawyer will accompany you for the initial court appearance. At this time the Queen’s Bench will finalize the appeal hearing date as well as any additional documentation or evidence that will be required at the hearing date.
  6. Appeal Hearing: It is at the appeal hearing that the Queen’s Bench will make a decision regarding your appeal.

How Can A Family Lawyer Assist With Appealing a Child Custody Order?

An experienced family lawyer can assist in a variety of ways with your child custody order and appeals process. Some of the things they can assist with include but are not limited to:

  1. Child custody and access: A lawyer can help appeal where the children will live after separation or divorce as well as who will look after the children and what kind of access each parent will have.
  2. Mobility and Relocation: Amendments to the mobility of children as well as their relocation may be granted in the event one of the parents need to relocate or move elsewhere. Additionally, there may be times that one parent may want to restrict vacationing with children due to risk or other issues. In a situation like this, an appeal or amendment to the child custody order may be granted.
  3. Child support payments and schedules: While both parents have an obligation to financially support their children as well as adhere to the Alberta’s child support guidelines – changing economic or financial situations may allow for a change in the child custody order provided that the proper evidence and documentation is submitted.
  4. Child protection and safety: In the event that a child’s safety is at risk and evidence can be provided to validate this claim – an appeal or amendment to the child custody order may also be granted.

Contact an Edmonton family lawyer today regarding your child custody order or appeal

Are you in need of legal assistance with respect to child custody disputes? If so, contact our law firm and speak with an Edmonton family lawyer. We have assisted thousands of clients across Alberta with legal assistance with respect to child custody disputes. Don’t delay and call our law firm now by dialing 587-410-2500.

*Please note the content of this blog offers a general overview and does not constitute legal advice as every case is unique from one another. We encourage you to seek legal advice from a family lawyer for any answers related to child custody matters in Alberta.

Your Complete Guide to Child Custody in Canada

Child Custody
Are there different types of child custody in Canada? Who decides on these arrangements? Here's everything you need to know about child custody in Canada.

For most, divorce is the last thing on their radar. But if you have children, you need to consider what's in their best interest.

And if you want the situation to turn out in your favour, it's best to plan ahead. The average three-day case can cost at least $60,738, and most custody trials go on for at least five to eight days.

Here, we're breaking down everything you need to know about child custody, from the types of custody to factors that affect a decision.

What is Child Custody?

But first, the basics: what is child custody?

Child custody refers simply to the care, control, and maintenance of a child. Most of the time, biological parents have the legal right to make decisions about their child's welfare without question, including their residence, education, religious upbringing, etc.

Usually, parents are not required to obtain this legal right, especially if they are married to each other and are both listed on the child's birth certificate.

However, if the parents disagree over who has the right to make these decisions, or if officials find that the parents are unfit to make these decisions for some reason, the family courts (Queen's Bench or Provincial courts) work with the legal representation of the parents to determine custody arrangements.

Types of Child Custody

Keep in mind, though, that there are several different types of child custody. These include:

  • Sole or full custody
  • Joint custody
  • Shared custody
  • Split custody

Each of these is a subset within physical and legal custody and is determined based on the family situation in question.

Understanding Physical vs. Legal Custody

Before we go into the different types of custody, it's important to understand the difference between physical and legal custody, as the four types of custody listed here can be any combination of physical and legal custody.

Basically, when someone has physical custody of a child, that means that they're responsible for the child's day-to-day care, which almost always means that the child will live with a parent who has physical custody.

Legal custody, on the other hand, refers to the legal authority to make decisions in the child's life, such as education, healthcare, religion, and other concerns.

It is quite possible (common, even) to have one but not the other--parents might share legal custody but not physical custody. In other words, you could have a situation where both parents have legal input but the child only lives with one parent.

With that in mind, let's talk about the different types of custody.

Sole Custody or Full Custody

Sole custody is a term you've probably heard tossed around on TV--usually, one character is demanding that the other grant full or sole custody of their kids.

If a parent has sole custody, the child lives with that parent permanently. That parent also has the right to make all important decisions about the child, regardless of whether the other parent disagrees.

The other parent may still have access rights, though this is at the discretion of the parent with sole custody.

Joint Custody

If sole custody means one parent gets 100% control, then joint custody is a 50/50 split.

Joint custody is a relatively common arrangement in which parents share equal responsibility for the child's welfare. This means they must work together to agree on schedules, decisions, and other shared responsibilities.

Usually, a rotating visiting schedule is created between parents in which the child shares time between the two parents equally.

Shared Custody

Then, there's shared custody, which is similar but not quite the same thing.

Like joint custody, parents with shared custody care for and house their children for roughly equal amounts of time. Important decisions may or may not be shared, but if decision-making is shared, the parents will have to agree on a schedule for visitation.

If they cannot agree, a judge may step in to determine a visitation schedule and the division of parental rights.

Shared custody is preferable over joint custody if:

  • One parent is away from home for extended periods of time
  • One parent is less financially stable than the other
  • One parent is ill, injured, or unable to care for their children

In these scenarios, a 50/50 split provided by joint custody is impractical. Depending on the division created in a shared custody arrangement, child support may be calculated differently.

Split Custody

Finally, there's split custody, which is another variant of joint custody.

Basically, split custody is an arrangement in which custody is split between parents. So, if a family has two children, one child may reside with the mother and the other resides with the father.

Sometimes, this means that the children live permanently with their respective parent. Other times, children may rotate living with each parent in equal amounts.

In such arrangements, parents may still share legal custody, but each parent must have physical custody of at least one child. Either way, both parents must agree on split custody, and they must prove to the court that split custody is in the best interest of their children.

However, it is one of the least common custody arrangements, and courts may not grant split custody over joint custody even if both parents agree that split custody is the best choice.

Parens Patriae

Canadian courts also have parens patriae jurisdiction. This means that the state has the power and authority to protect those who cannot act on their own behalf. In family law, this means Canadian courts can take necessary action to protect children.

This is best explained in an example.

In one case, Johnson v. Athimootil, a court in Ontario accepted jurisdiction over children in Saudi Arabia who previously lived in Toronto, moved to Saudi Arabia, and whose mother returned to Toronto with only one child and had not seen them since.

How is Child Custody Determined?

Now that you understand the various types of child custody, let's talk about how child custody is determined.

Determining Factors

There are a few factors that collectively determine the outcome of child custody decisions in Canada. Above any other factor, the court will always consider the best interests of the children first.

They will, however, take other factors into consideration when determining what the best interests of the children are. This includes:

  • The parent-child relationship
  • Respective parenting abilities
  • The mental, physical, and emotional health of each parent
  • The relative financial stability of each parent
  • The typical schedule of each parent
  • Support systems available to each parent, like the relative help and involvement of grandparents or close relatives
  • Care arrangements prior to separation
  • Any sibling issues
  • The child's wishes

Most of the time, courts prefer to keep siblings together (which is why split custody arrangements are so unusual). However, under some circumstances, the court may consider it necessary to separate the children.

The court will put the best interests of the children above all else when under the age of 18. However, once a child turns 12, their wishes to live with one parent or another is usually respected by the courts.

The past behaviour of a parent will not be taken under consideration in a custody decision.

However, if there are extenuating circumstances which directly reflect on the person's ability to act as a parent, the court will consider them This includes things like substance abuse or allegations of abuse or neglect. Adultery and other marital offences are not sufficient to deny custody.

Who Decides Child Custody?

So, who is ultimately responsible for deciding who gets custody of your kids?

The decision-making power comes from one of two places:

  1. An agreement between parents
  2. The courts

Keep in mind, though, that if parents reach a decision outside of court that both can accept and such an agreement has been put in writing, the court generally won't interfere. This is preferable, as it's far less expensive and disruptive.

However, if parents cannot reach a decision, they may have to ask a court to step in and mediate for them. In making their decisions, courts will consider the Divorce Act, the Family Law Act, the Children's Law Reform Act, and precedents set in other cases.

However, as we said, the court will always consider the best interests of the child first.

Conditions the Courts Favor

However, even with all of these possible considerations, there are three factors that courts usually favour:

  1. A pre-existing arrangement between parents
  2. Whether one parent is full-time or not
  3. Which parent is the primary caregiver

For example, as a rule, courts prefer to grant custody to whichever parent was the primary caregiver before the divorce. This is usually the mother, but it can be the father or even a grandparent.

They will also consider how much time each parent can devote to the children (whether or not a parent works, what their work schedule looks like) relative to their capacity to financially and emotionally support the child.

Child Support

Part of the court's decision has to do with child support, as child support is often determined by the custody decision.

In any custody decision that is some variant of joint custody, especially shared custody situations, a judge will endeavour to set child support amounts to ensure that children in a similar situation are treated the same.

Determining Factors

Now, there are a variety of factors that will determine a child support decision. Our examples will assume the court is making the decision.

First, a court will determine whether the shared custody rule applies. They will primarily consider cost or time as deciding factors.

For example, under child support guidelines, a parent must exercise access to or have physical custody of a child for 40% or more of the time in a year. However, there are several arguments against this rule.

As such, a judge may also consider cost as a deciding factor, which means they must decide which costs are legitimate. However, it is worth noting that child support for low-income mothers is generally inadequate, while child support for high-income mothers often far exceeds their actual need.

Deciding on Child Custody

Once you know all the mitigating factors and the types of child custody available to you, you need to figure out what custody arrangement is best for your children.

You have one of two options: going to court, or working it out outside of court.

Going to Court

In theory, going to court makes it easier, since you argue your case and the decision is taken out of your hands.

In practice, going to court makes everything harder.

Aside from the financial strain that results from a trial, taking your case to court takes a huge emotional toll on your family. Going to court is a valid option if you just cannot agree, but if you can find a way to reach an agreement outside of court, it makes the whole divorce much easier.

Without Going to Court

Outside of court, you have several options to figure out child custody.

One of the main people who can help you through your divorce is a family or divorce lawyer. They can help guide you through the entire process and help ensure the best possible outcome.

In addition, you may also consider working with a family mediator or a therapist. Divorce is a stressful time, especially for kids, and you want your children to feel secure going into this new phase of life.

The Family Lawyer You Need

Central to ensuring a smooth child custody process is a great family lawyer. That's where we come in.

Whether you've lived in Canada for your entire life or you're brand new to this country, we're here to help you make sense of the legal system. Our family lawyers understand and empathize with clients and provide a realistic assessment of your situation.

We have many testimonials that speak to our clients' satisfaction with our services.

If you need to speak with a lawyer, use our contact page to get in touch.