The intersection of Family Law and Adult Guardianship/Trusteeship.

Case Analysis: ASB (Re), 2025 ABKB 614

The intersection of Family Law and Adult Guardianship/Trusteeship.

Overview

This case explores the interplay between the federal Divorce Act and the provincial Adult Guardianship and Trusteeship Act (AGTA).

It involves a child with a moderate intellectual disability who was unable to withdraw from their parent’s care when they reached the age of majority. While the child was a minor, the parents entered in to a final parenting order, under the Divorce Act, whereby they had shared decision-making for major decisions.

However, the Court ultimately appointed the mother as the sole guardian and trustee, with the father as the alternate, marking a significant departure from the existing parenting regime. To resolve this, the Court varied the original parenting order to align with the new guardianship order.

Jurisdictional Shift

Once a child becomes an adult, they fall under the jurisdiction of the AGTA. In this instance, both parents sought sole authority over the adult dependent’s personal and financial matters, despite the prior order setting joint decision-making.

By applying the AGTA, the Court is acknowledging that caring for an adult dependent differs fundamentally from caring for a minor, necessitating a distinct best interests evaluation based on the factors outlined in the AGTA, not just the Divorce Act.

Statutory Conflict

This case also highlights a key distinction between provincial and federal family legislation. The Family Law Act (Alberta) generally ceases to apply once a child turns eighteen. However, the Divorce Act (Federal) continues to apply as the definition of a "child of the marriage" can continue indefinitely if the child cannot withdraw from their parents' care due to illness or disability.

Consequently, a Divorce Act order will continue to apply to an adult dependent. This raises the issue of federal paramountcy. Under this doctrine, the Divorce Act takes precedence over any provisions of the AGTA that are found to be operationally incompatible or in conflict with the federal legislation. Indeed, the Court addressed this issue by finding the AGTA and the Divorce Act harmonious, treating the transition to adulthood as a change in circumstances that justified varying the prior order.

However, it should be noted that neither party argued that an operational conflict existed, and the Court avoided a more exhaustive constitutional analysis.

The Best Interests Analysis

In actuality, there is some indication that the Divorce Act and the AGTA are harmonious. Both acts utilize a ‘best interests’ framework. While the specific factors in the AGTA are tailored to the adult context, they mirror the intent of the Divorce Act.

In this case, the Court found the following factors persuasive in determining that shared guardianship and trusteeship would not be in the adult dependent’s best interest;

1. High Conflict: The parents' contentious relationship hindered their ability to coordinate care.

2. Conduct: The father acted in ways that contravened the existing parenting order, suggesting he would be less likely to collaborate transparently with the mother.

   
   

To avoid a potential decision-making deadlock contrary to the adult dependent’s best interests, the Court granted the mother final decision-making authority. Although both parties were deemed sufficiently responsible to serve as guardians and trustees, the mother was found to be more reliable and collaborative, justifying her role as the primary decision-maker while the father remains involved in a secondary capacity.

Interestingly, the Court does not consider the status quo set by the Parenting Order, merely acknowledging that the previous order’s provisions continued to be in effect save for what was directly modified.

Key Takeaways & Practice Notes

While this case is an interesting exploration of the interplay between various levels of legislation, there are some key practical implications that should be addressed.

Predictive Planning: Practitioners should advise clients that a parenting Order for a child with a disability may be significantly altered or overturned once the child turns 18 and the AGTA applies.

Comprehensive Drafting: To mitigate future litigation and ensure a seamless transition from minor child to adult dependent, issues of future adult guardianship and trusteeship should be addressed within an initial parenting order when possible. This may require collaboration with Wills and Estates or Disability Law specialists.

Side Note: The Court reiterated that a Legal Brief is not evidence. The father attempted to introduce new facts within his Brief rather than via a supplemental Affidavit; the Court properly disregarded this information.

Conclusion

If you anticipate that your child will require support as an adult dependent upon reaching the age of majority, proactive legal planning is essential. At Stokes Law LLP, we possess the specialized expertise to protect your interests and ensure the long-term legal security of your children.

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