A parent with physical custody of their child is a guardian by right. However, there may come a time when other adults have an interest in seeking guardianship over a child for a variety of reasons. This primarily occurs in situations where the child has been the subject of government intervention and removed from their home, or there is a threat that the child will become subject to government intervention. Often grandparents or extended family will apply to be guardians of a child, or if a child is in foster care the foster parents may apply to be guardians. Once the Director of Children’s Services has obtained a Temporary or Permanent Guardianship Order under the Child, Youth and Family Enhancement Act (the “CYFEA”), or the child is otherwise under the guardianship of the Director, the child may be placed in the care of a foster family or a kinship placement. In situations where it is unlikely the child will be returned to their home, the foster parent(s) or kinship placement may choose to seek permanent legal guardianship over the child pursuant to the CFYEA by making an application for a Private Guardianship Order.
This process of seeking a Private Guardianship Order can be complex and emotionally charged for everyone involved. At the end of the day, a child has been removed from their parents and the only home environment they’ve ever known and placed in unfamiliar surroundings. Even in cases where a child lacked basic care or safety at home, the change can be traumatizing. A lawyer with a thorough understanding of the Children’s Services system will be invaluable in providing guidance to a person seeking to become a permanent guardian to a child who is under the guardianship of the Director. Lynsey Mincher, one of the founding partners of Mincher Koeman, previously worked as Director’s Counsel with Children’s Services prior to her move to private practice. Since moving into private practice, both Lynsey Mincher and Andrew Koeman have taken on many cases challenging the legal basis for child apprehension applications. Their experience affords them a unique knowledge of a complex system and enables our firm to advise clients with an insight into the child intervention process few other family law firms in Calgary can provide.
The CYFEA sets out the required components of an application for a Private Guardianship Order (as opposed to a Guardianship Order which is granted under the Family Law Act) as follows:
In cases involving an Indigenous child, this process is largely the same, however, there are additional requirements that must be satisfied to address the specific and unique cultural needs of Indigenous children.
If the child is over 12 years old, the court will seek their consent prior to approving a Private Guardianship Order application, however, if consent is not given, the court can approve the application if it is deemed to be in the child’s best interests.
In certain cases, a Private Guardian may be entitled to receive financial assistance from the Director as follows:
Note that in order to be granted financial assistance, the Director may require the private guardian to demonstrate that, without it, their role as guardian would place an excessive burden on his or her financial resources.
At Mincher Koeman, our family lawyers have considerable knowledge of Alberta Children’s Services, it’s policies, practices and procedures and as such we will provide insightful and accurate advice to any person seeking a Private Guardianship Order under the CFYEA. We have a deep sense of empathy for children who have been removed from their homes and will prioritize their best interests in all cases, working to assist with applications for a Private Guardianship Order that will help to set the child on a better and healthier path. Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.
© Mincher Koeman LLP 2019. All rights reserved.
Website designed and managed by Umbrella Legal Marketing