One shudders to think of living in a society where almost any individual could form a strong bond with a child and, because of that bond, swoop in and wrest guardianship rights away from that child's lawful guardian. In such a society, almost all parents or guardians would rightfully be wary of the "cool uncle" who regularly takes the child skiing on the weekends, or the wealthy neighbour who offers to pay for the child's private schooling. Fortunately, our laws afford guardians protection against legal strangers usurping guardianship rights. This protection, however, is not absolute.
Section 23 of Alberta's Family Law Act
Section 23 of Alberta's Family Law Act ("Act") states that a person may apply for guardianship of a child if that person is either:
- An adult who has care and control of the child for a period of more than six months, or
- A parent other than a guardian of the child.
Unless an individual is a biological parent, a parent through assisted reproduction, or an adoptive parent of the child, that person is effectively a legal stranger to the child and therefore does not have standing to apply for guardianship. The Act's "care and control" requirement, however, is more of an area for concern than the parentage requirement under s. 23.
Alarmingly, we have seen an increased number of successful guardianship applications in which the applicant is a legal stranger who has not had care and control of the child for more than six months. The successful applicant may argue that he or she is a more capable guardian than the child's current guardian(s), that he or she is better equipped financially to provide for the child, or even that the child simply enjoys the company of the applicant more than the child's current guardian(s).
If the Court deems that there are good and sufficient reasons to do so, it may waive the six-month care and control requirement pursuant to s. 23(5) of the Act and award guardianship accordingly. However, the above-noted arguments available to applicants (i.e. more money, better caregiver, etc.) are usually not sufficient to waive the six-month care and control requirement, even though come courts have determined otherwise.
Case Law Addressing Waiver of the "Care and Control" Requirement
There are at least two Alberta Court of Queen's Bench decisions stating that the care and control requirement can only be waived when the applicant has an intimate bond with the child that is almost paternal/maternal in nature, B.B. v L.D., 2002 ABQB 429, P.M. v S.L.D., 2007 ABQB 99.
In the 2008 Court of Queen's Bench decision P.M. v S.D., 2008 ABQB 109, Justice Burrows went one step further and stated that the high statutory standard of "standing in the place of a parent" (s. 48 of the Act) must be satisfied for a legal stranger to gain standing to bring a guardianship application.
If an applicant satisfies the above criteria for standing, he or she has another hurdle to jump if there is competition from the child's lawful guardian for guardianship. The Alberta Court of Appeal has stated that courts cannot wrest custody from a lawful guardian without first demonstrating that the lawful guardian has either abandoned or neglected the child, or without offering other commanding reasons, W.D. v G.P.,  5 W.W.R. 289. In other words, a "legal stranger" applicant must prove that the child's lawful guardian is unfit to be successful in a guardianship application.
The "cool uncle" and wealthy neighbour scenarios are not confined to the fictional society illustrated at the start of this article. Legal strangers to children have brought - and will continue to bring - guardianship applications before our courts, arguing that they are better-equipped to care for the child than the child's lawful guardians. Such arguments do not stand up under Alberta law in many cases and should be contested for reasons expressed by Justice Conrad of the Court of Queen's Bench (as she then was):
... it would be a travesty if someone with more means and better parenting skills could at anytime make an application for another's child and put them in a position of defending their right to the child... A person must have status with respect to the child to have any right to make an application to this court and to be heard, K.K.W v E.J.R (1989) 69 Alta LR (2d) 95.