Custody & Guardianship

The well-being of your children are your utmost concern, and the divorce process can be very stressful for them. A family lawyer will handle the legality of custody and access for you.

Determining custody of children after parents divorce can be stressful for everyone; a divorce lawyer will work to alleviate as much stress as possible. Parents must decide where the children should live, who will make the major decisions in the child’s life, and what time each parent gets to spend with the children. Custody or guardianship refers to the responsibility of making decisions with respect to the raising and care of a child, including the child’s place of residence, discipline, education, and consent to medical treatment.

One or both parents may have custody or guardianship of their children. When one party has sole custody or guardianship, that parent makes all the decisions with respect to the child. These decisions must be agreed upon when the parents have joint custody or guardianship. If divorcing couples agree to joint custody, many different living arrangements are possible.

If married or divorced parents cannot agree on these issues they may apply for a custody and access order under the Divorce Act. Parents who have never been married to each other can apply for a guardianship and parenting order under the Alberta Family Law Act. A judge may make an order after considering:

  • the best interests of the child
  • how to ensure the child will have as much contact with each parent as possible, so long as this is in the best interests of the child
  • the past behaviour of the parent, only insofar as it reflects on the individual’s ability to act as a parent.

RCMV Family Lawyers want to diminish the strain child custody disagreements make on the divorce proceedings. Contact us to help you find the best solutions for your particular divorce or separation situation.

There is a lot to consider when determining the best custody or guardianship arrangement. We’ve compiled some questions or family lawyers often receive during the process:



‘Custody’ is a term commonly used in divorces where there are children involved. The term is often found in court documents and used by lawyers with little clarification of what it actually means legally. The Divorce Act is the primary reason for this, because it includes a legal definition that “custody includes care, upbringing and any other incident of custody;” but what does that actually mean?

Simply put, custody refers to who makes major decisions about the child or children, including:

  • where they live
  • where they go to school
  • what kinds of medical treatment they receive
  • what religion, (if any) they’re raised with
  • what kinds of extracurricular activities they join, etc.

When parents get divorced, it must be decided whether they will share custody, known legally as ‘joint custody’, or whether one parent will have custody on their own, known legally as ‘sole custody.’


In situations of joint custody, the parents make the important decisions about the child or children together; while when one parent has sole custody, they make those decisions on their own.

When joint custody is granted, one parent is often designated as having primary care and control of the child to show with which parent the child mostly lives with. An arrangement is made outlining when the other parent has access to the child. As mentioned, the parents make the important decisions about the child together, but day-to-day decisions are made by the parent when the child is with them.


‘Joint’ custody allows each parent to make most important decisions for their child together, while in situations of ‘sole’ custody one parent makes those larger decisions on their own.


The other parent having sole custody does not remove the legal guardianship role that comes with the birth of all children. While the parent with sole custody has the ability to make important decision for the child on their own, the other parent still has many rights, including being a part of their child’s life.

In other words, with sole custody both parents are usually able to make day-to-day decisions during their time with the child. However, the non-primary parent will not have a legal right to be part of important ongoing decisions.


Many people often confuse custody with ‘guardianship’. Unlike custody, which only arises when parents get divorced, guardianship comes into effect automatically whenever any child is born.

The legal source of ‘custody’ comes from the Divorce Act, while in Alberta, ‘guardianship’ comes from the Family Law Act

Guardianship grants parents certain rights to their children, but also creates responsibilities towards children as well. Although it can seem complicated, guardianship and custody are not principles that conflict with each other, but rather they overlap. Guardianship is triggered for all children at birth, and custody arising when parents get divorced.

When parents get divorced, usually their legal roles as guardians for their children do not change regardless of whether joint or sole custody is decided on in the divorce. Legally, parents still have the same rights and duties to their children as a guardian, they active decision making power for the children is simply outlined based on custody.

More information on custody, guardianship and some other legal terms used in divorces can be found on the Alberta Courts’ website.

In other words, with sole custody both parents are usually able to make day-to-day decisions during their time with the child. However, the non-primary parent will not have a legal right to be part of important ongoing decisions.