QUESTION OF THE WEEK: If a common law couple dies and grandparents are in different provinces what happens to the children.


If a common law couple dies and grandparents are in different provinces what happens to the children.


It depends if the person died with out making a Will that has Guardianship provisions in it. With a Will the guardian in the Will can act. Without a Will, the family members would need to apply to court and have a Justice look at the situation and choose who would be the guardian.

In Alberta a person can become a guardian of a child by any of the following three ways:

  • A parent will automatically become a guardian by operation of law provided that they knew about the pregnancy or birth of the child. Interestingly, the definition of “parent” now includes one or two fathers or one or two mothers. However, if a pregnancy was the result of a sexual assault, the parent committing the assault is not eligible to become a guardian under this section and would need to start a Court Application to become the parent.
  • A person is appointed a guardian by a Court Order upon proving to the Court that the appointment is within the child’s best interest and
  • A person is nominated by a guardian in a Will or written document to replace the guardian in the event of his or her death.

If the common law couple have executed a Will that provides for guardianship the person they have appointed would become the child’s legal guardian after the court had reviewed this appointment. This is a relatively easy procedure and typically this is handled very smoothly. The guardian nominated in the Will by the parent would only have the guardianship powers that the nominating parent had. For instance, if you have sole custody of your child, then you may appoint anyone you wish. The other parent of the child may make an application upon your death for guardianship. The Court will always consider the best interests of the child in granting the Guardianship Order.

If there is no Will then Under Section 23(1) of the Family Law Act, the Alberta Courts has jurisdiction to choose the guardian. The Court may appoint a person to be the guardian of the child upon application by that person. The person applying should be an adult and have had care and control of the child for a period of more than 6 months, or should be a parent other than a guardian of a child.

Relatives or friends of the child may also apply for Guardianship Orders to keep the child in their own homes. A “home study” is often required before a Court Order is granted. A social worker is sent to the proposed guardians home to talk to them and their family. They also talk to their neighbours and school teachers. This assists the Court in providing evidence as to whether the person applying for the Guardianship Order would be a suitable guardian for the child.

If you become an unfit guardian of the child, the Court may take away your guardianship rights to the child. Or, the Court may appoint another guardian to act as a co-guardian with you.

The Court will always consider the best interests of the child in granting the Guardianship Order. The Guardianship Order will provide for the personal care, day-to-day decisions for the child, and to make all major decisions for the child, including those related to religion, medical care and schooling. It will not give the guardian the right to make decisions for the financial affairs of the child. If a guardian requires authority over the child’s financial affairs, they should consult a lawyer. This is a complex responsibility, and this particular role should be discussed with a lawyer.

When you are making a decision as to whom you should appoint as guardian for your children, you may want to consider the following:

  • The age of the child and the age of the potential guardian
  • The guardian’s lifestyle
  • The attitude of the guardian towards child rearing
  • The value of education
  • The religious beliefs
  • The child’s wishes – The Courts will hear a child in the guardianship application if the child is 12 years or older.

Interview the person you are appointing as guardian of your child. Listen to their beliefs and their values, and make your decision based on their attitudes. You should also make the necessary appointments for any money your child will inherit. You may need to provide for money for the guardian who will care for your child on a day-to-day basis. Remember to appoint an alternative guardian. The original guardian you appointed may not be able to assume the responsibility or may not be able to continue to act as guardian. That person may become sick on a permanent basis and may have to refuse or resign the guardianship. If there is no guardian appointed, a director designed by the Minister for the purposes of the Child, Youth and Family Enhancement Act will apply to become a guardian of your child or the Court may appoint someone other than the person you would have chosen to care for your child. This would mean that you would have no say on the appointment of the guardian.

Written by Stacy Maurier