Shared Parenting Information Group (SPIG) UK

- promoting responsible shared parenting after separation and divorce -

Canada - unmarried fathers - a summary of the law

Most Canadian provinces declare that unmarried fathers are joint guardians with the mother. There are a number of variations on this, with Alberta for example requiring the father to have cohabited with the mother for at least one year prior to the birth, and others declaring that joint guardianship only exists while the parents cohabit or reach agreement.

This is in marked contrast with the USA, where unmarried fathers have no standing unless they have proved their commitment to their children by financial and health care provision during the pregnancy and afterwards and registered a 'Declaration of Paternity'.

Extracts of the relevant laws appear below

Alberta Domestic Relations Act Guardians

    47(1) Unless a court of competent jurisdiction otherwise orders, the joint guardians of a minor child are

      (a) the mother, and
      (b) the father, if ...

        (iii) he cohabited with the mother of the child for at least one year immediately before the birth of the child ...

British Colombia Family Relations Act

Parental guardianship

    27 (1) Subject to section 28, whether or not married to each other and for so long as they live together, the mother and father of a child are joint guardians unless a tribunal of competent jurisdiction otherwise orders.

    27 (5) Subject to section 28, if the father and mother of a child

    (a) have not been married to each other during the life of the child or 10 months before the child's birth,
    (b) are living separate and apart, and
    (c) do not share joint guardianship under this section or under an order of a tribunal of competent jurisdiction, the mother is sole guardian unless a tribunal of competent jurisdiction otherwise orders.

Guardianship agreement

    28 (1) The father and mother described in section 27 (2) or (5) may, by a written agreement between them, provide that, during the term of the agreement,

      (a) they are joint guardians of their child, or
      (b) one of them is sole guardian of their child.

    28 (2) The making of an agreement under subsection (1) does not bar the jurisdiction of a court to make an order respecting guardianship.

New Brunswick Family Services Act 129(1) Unless otherwise agreed by written agreement or unless otherwise ordered by the court, where the child has more than one parent, the parents jointly have custody of their child.
Northwest Territories Domestic Relations Act

Joint guardians

    22. (1) Unless otherwise ordered by the Court or a justice, the mother and father of a child who are living together or have lived together at any time during the life of the child, whether or not married to each other, are joint guardians of their child.

Agreement on custody of child

    27. (1) Parents who are not living together or are divorced or judicially separated may enter into a written agreement with regard to which parent will have custody, control and education of their child.


    27. (2) If the parents fail to reach agreement on the matters referred to in subsection (1), either parent or the child may apply to the Court for its decision.

Ontario Children's Law Reform Act

Father and mother entitled to custody

    20.(1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child.

Where parents separate

    20.(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides.

David Cannon

Last updated - 4 February 2000

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