Legal Guardianship

Please provide copies of any orders or agreements addressing guardianship rights, responsibilities, and entitlements or otherwise affecting the custody of or access to your child or child’s information, to the principal of your school.

According to the Education Act, a parent is the guardian as set out in section 20 of the Family Law Act (FLA); Part 5 of the Child Welfare Act; Part 1, Division 5 of the Child, Youth and Family Enhancement Act; or section 23 of the FLA; a temporary or permanent guardianship order under the Child Welfare Act; or an order of the court or an agreement made in accordance with family law legislation.

While a parent is usually the legal guardian of the child, that is not always the case. Guardianship rights can be shared by parents or can be lost. As a student’s right to attend any particular school is based upon the residence of the “parent”, and as it is the parent who exercises the various powers, responsibilities and entitlements as a guardian under the Education Act, it is important that a school board determine who the legal guardians are for any particular child.

The FLA provides that, subject to any order of a court regarding guardianship of the child, the mother and father of the child are both the 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 300 days before the birth of the child
  • Married each other after the birth of their child
  • Cohabitants with each other for 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 above does not describe your relationship, guardianship is determined based on residence of the child. Section 20(3) of the FLA provides that the mother and the father are both the guardians of the child until such time as the 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 substantially equivalent periods of time, both parents become the guardians of the child.

According to the Education Act (Section 4 (8)), if each parent is a resident of a different school division,

a) the parents must choose in writing one of those school divisions;
b) the student is a resident student of the board of the chosen school division,
c) the student must attend the school the student is directed to attend by the board of the chosen school division in accordance with section 10, and
d) the board of either school division may require that the choice of the parents remains in effect during the school year in respect of which it is made.

(9) If a parent is limited by law in exercising an authority under subsection (8)(a) and that parent is a resident of a school division different than that of the other parent, the other parent may choose which of the 2 divisions in which the student is to attend school, and subsection (8)(b) to (d) apply.