Student Guardianship, Access and Custody
The legal guardians for any particular child registered in the school must be determined, as a student’s right to attend a particular school based on the residence of the “parent” as defined under the School Act, and as it is the parent who exercises the various responsibilities, rights and entitlements both under the School Act, and as the guardian under the Family Law Act.
The School Act defines a parent as the “guardian” as set out in section 20 of the Family Law Act (FLA); Part 5 of the Child, Youth and Family Enhancement Act: Part 1, Division 5 of the Child, Youth and Family Enhancement Act; or Section 23 of the Family Law Act; a temporary or permanent guardianship order under the Child, Youth and Family Enhancement Act; or an order of the Court or an agreement made in accordance with the family law legislation.
- Principals are responsible for collecting all relevant information that will help determine who the proper legal guardians are for each child.
- The Family Law Act provides that subject to any order of a Court regarding guardianship of the child, the mother and the father of the child are both 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 three hundred (300) days before the birth of the child;
- Married each other after the birth of the child;
- Cohabitated with each other for twelve (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 parents’ relationship is not covered by the above list, guardianship is determined based on the residence of the child. Section 20(3) of the Family Law Act provides that the mother and father are both the guardians of the child until such time as that 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 substantial periods of time, both parents become the guardians of the child.
- Notwithstanding subsection 20(3) of the Family Law Act, 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.
- Where a person claims to be a parent or guardian, or claims the existence of any limitation on the authority of the parent or guardian, the onus is on that person to provide proof of the claim.
- Principals are to communicate to the legal guardian(s), through the student registration process, that if a person claims to be a parent or guardian, or claims the existence of any limitation on the authority of that parent or guardian, the onus is on that person to provide proof of the claim. Guardians are to be asked to provide copies of all orders or agreements addressing guardianship rights, responsibilities or entitlement, or otherwise affecting the custody or access to the child for whom registration is sought. Forms of proof may include:
- Orders issued under the Divorce Act by the Court of Queen’s Bench which refer to the custody and access of the child. Court orders addressing guardianship rights of legal guardians can be issued by either the Provincial Court of Alberta, or the Court of Queen’s Bench.
- Court orders issued prior to October 1, 2005, under the now repealed Domestic Relations Act, or the Provincial Court Act, will also be valid unless replaced by a new court order or agreement issued under the Family Law Act which address custody, access or guardianship issues.
- Agreements or orders under the former Child Welfare Act, or under the new Child, Youth and Family Enhancement Act or the Family Law Act, which appoint legal guardians may also be provided as proof of guardianship.
- In rare circumstances, a child may also be impacted by a restraining order issued under the Child, Youth and Family Enhancement Act, which order limits rights of access by the guardian to the child.
- The Principal or his designate(s) must carefully review each agreement for authenticity so as to ensure that the school has the most recent order issued in proceedings.
- Powers, Responsibilities and Entitlements of Guardianship. While the parent is usually the legal guardian of the child, that is not always the case. Guardianship rights can by shared by parents or can be lost. Where a child has more than one (1) guardian, the guardians:
- May exercise the powers, responsibilities and entitlements of a guardian, unless the Court orders otherwise;
- Shall provide information to any other guardian relating to the exercise of powers, responsibilities and entitlements of guardianship at the request of that other guardian;
- Shall use their best efforts to cooperate with one and other; and may enter into an agreement with respect to the allocation of powers, responsibilities and entitlements of guardianship among themselves all as provided for under the Family Law Act.
- Except where otherwise limited by a parenting order, each guardian is entitled to be informed of and consulted about and to make all significant decisions affecting the child in the exercise of such powers, and to have sufficient contact with the child to carry out those powers and responsibilities.
- Guardianship rights can be removed or affected by a separation agreement under the Divorce Act, through a parenting agreement made under the Family Law Act, by custody or access orders issued under the Divorce Act, or through Court orders including parenting and contact orders made under the Family Law Act.
- Principals are responsible for ensuring that all such Court orders or agreements are securely stored, and that such information is only shared on a need to know basis, and that guardians/parents are aware of the need to update such information on an annual basis.
- If the Principal is faced with requests for access to a student by a guardian whose rights of access to the student are limited by the terms and conditions of a custody or access order, or a parenting or similar order, the Principal is to:
- Remind the guardian(s) of their responsibility to provide the school with a copy of the most recent order impacting the custody, access or guardianship rights. In the event of a dispute the claimed entitlement/restriction could be verified with any other legal guardian noted on the student record;
- Carefully assess limitations set out within the custody and access agreement or guardianship order to determine if they limit the guardian’s right to access the student during school hours or on any school premises or any school sponsored activities. Any such limitations must be enforced;
- Depending upon the limitation specified in the order, deny the guardian access to the student during school hours or on any school premises or at any school-sponsored activities, in accordance with the terms and conditions of the relevant order and/or agreement;
- Take such other further steps as are deemed necessary, in consultation with the Superintendent or designate.
- Where the legal guardianship rights and/or entitlement respecting a child are in dispute, and one of the guardians is making a demand for access, the Principal is to:
- Inform the claimant of the obligation to provide documentation in support of the authority of the guardian to access the child;
- Be in possession of the most recent Court orders and/or agreements issued with respect to the guardianship of the child;
- Ensure that any other individual claiming to have legal guardianship rights, has been given the opportunity to verify that the Division has the most recent and relevant documentation respecting guardianship and/or access to the student;
- In the event of a dispute, between the guardian and the Principal, which results in a disturbance or interrupts the proceedings of the school, over the rights of access to the student, the Principal shall, where the governing documents clearly deny the guardian the right of access to the student, take such steps as are reasonably necessary to avoid the recurrence of the issue, which can include the issuance of an appropriate notice under section 27 of the School Act;
- Consult with the Superintendent or designate.
Sections 1, 2, 18, 20, 23, 45, 60, 61, 113 School Act
Student Records Regulation 225/2006
Child, Youth and Family Enhancement Act
Domestic Relations Act
Canadian Charter of Rights and Freedoms
Family Law Act
Board Policy 12 Role of the Superintendent
Reviewed August 2018