In Alberta, the family law system favors the active involvement of both parents in raising a child—unless evidence shows that this is not in the child’s best interests.
Within marriages, the father of a child is presumed to be the husband of the child’s mother. With unmarried couples, paternity needs to be established— and may need to be proven with a paternity test— before a father’s rights are granted.
Ultimately, a father’s rights are powerful rights protected under Alberta law regardless of marital status, with the same rights applicable to both mother and father.
Let us take a closer look at unmarried fathers’ rights in Alberta.
Do unmarried fathers have the same rights as married fathers in Alberta?
Couples who live together and have children together are considered to have equal parenting rights and responsibilities both in Alberta and across Canada—whether they are married or not.
If the parents separate or decide to no longer see each other, legal difficulties may ensue with parenting, child custody, and child support issues.
According to the established legal frameworks, an unmarried parent with the care and control of the child (usually the mother) is considered the child’s sole custodian without having to go to court. This can vary with the issuance of a court order in a child custody case.
According to federal and provincial law, a husband is presumed to be the father of a child from the marriage—and a male is presumed to be the father in the following situations:
- If he married the mother after the birth of the child and has acknowledged that he is the father.
- If he lived with the mother for one year, the child was born during that year, and he has acknowledged that he is the father.
- If he lived with the mother for at least one year and separated from the mother less than 300 days before the child was born.
- If he is registered as the father under a provincial Act at the joint request of himself and the mother.
- If a court order states that he is the father.
The main difference between married fathers and unmarried fathers is that an unmarried father may need to prove paternity before claiming parental rights and child custody. Until then, an unmarried father may legally have no say in the upbringing of the child, which can lead to legal disputes and an unsettling environment for the child that is best avoided.
Do AIPs have the same rights regarding children in Alberta?
Adult Interdependent Partners (AIPs) have largely the same rights as married couples under Alberta law. This includes the same parental rights and responsibilities to make decisions about the care and upbringing of their children and to provide support.
Under the Family Law Act, both AIPs share the following rights, responsibilities, and obligations towards their children:
- Responsibility for the child’s well-being, including their physical, psychological, and emotional health.
- The duty to provide the child with necessary care, guidance, and financial support.
- The right to make decisions concerning the child’s education, religion, and cultural upbringing.
- The right to have the child live with them, subject to any court orders.
The mother and father of the child are presumed to be the child’s legal guardians if they cohabited for 12 consecutive months, during which the child was born—or they were AIPs before or after the child was born.
Establishing a father’s paternity in Alberta
Proving parentage may be required in an unmarried parent’s child custody or child support case in Alberta. As an unmarried father, you can only claim parental and custody rights once you have a declaration of parentage. You will need to apply to the court in Alberta to obtain this.
A father who must prove that he is the biological parent of a child must establish paternity using one of these two methods:
- Recognition of parentage: an informal process where the mother confirms that the claimant is the child’s father. If the mother is married to another person, a signed copy of the spouse’s non-parentage statement from her husband is required.
- Paternity adjudication court order: in paternity disputes, the court must decide on paternity using DNA evidence or blood test results (if consented to by the male involved in the case).
Child support obligations of unmarried fathers in Alberta
Unmarried fathers have the same obligations towards their children as married fathers—including the responsibility to pay child support.
These payments are designed to help meet the costs of raising the child, such as food, clothing, housing, education, and healthcare. Payment amounts are determined by the Federal Child Support Guidelines, which consider both parents’ incomes, the number of children, and other factors.
How does “undue hardship” impact unmarried fathers’ rights in Alberta?
If an unmarried father claims “undue hardship” from child support obligations and the court finds that the claim has merit, a child support order may be modified. However, this will only be the case if the father faces serious and genuine problems in meeting their payment obligations—refusing employment or deliberately remaining under-employed to avoid paying child support will not work.
Custody and visitation rights of unmarried fathers in Alberta
In Alberta, unmarried fathers (if parentage is proven) enjoy the same rights to custody and visitation as the mothers—providing it is in the best interests of the children.
When making child custody and visitation determinations, courts in Alberta strive for the most stable, consistent, and supportive environment for the child. This usually means regular contact with both parents unless factors like abuse, mental health issues, substance addiction or other circumstances could impact the child’s well-being and development.
Joint legal custody is generally the ideal arrangement, where both parents have an equal say in how the child is raised. Even if sole custody is awarded to the mother, an unmarried father usually still has the right to access and visitation so that he can still play an active role in the child’s upbringing.
Can a mother refuse access rights to the father in Alberta?
In joint custody arrangements, the father has a right to spend adequate time with the child and be involved in decision-making on the child’s upbringing.
A mother spending more time with the child than the unmarried father is normal. However, the mother refusing the father access rights to the child may constitute a breach of the father’s rights and could be contested in court.
If the mother decides to move away, the father must be informed and may contest the move in court, just as with divorced couples.
The exception to this general rule is if the father’s access rights have been removed, which is rare and usually only happens if the father is deemed an ongoing threat to the child. Even then, the court may order supervised visitation or supervised parenting time in preference to the permanent removal of a father’s rights.
If a father disappears from his child’s life, will paternal rights be terminated?
Parental rights may be terminated by the Alberta courts in cases of repeated or extreme breaches of parental responsibilities.
One such scenario is if the father is absent from his child’s life for an extended period without a good reason (usually six months or more). However, the child’s best interests (rather than the mother’s wishes) will be the main deciding factor in such cases.
If you live in the Calgary area and need assistance with any matters concerning divorce, the experienced lawyers at Jennings Family Law can help you. Call (403) 316-0138 to request a confidential consultation, contact us directly online, or email Warren Jennings directly at warren@jenningsfamilylaw.com.
