Parenting & Child Custody in Alberta
Often the most difficult aspect of separation (whether the parties are married or unmarried) is deciding where the children will live. This is because parents are often afraid of losing quality time with their children, they may no longer trust the other parent, and there are significant financial implications associated with parenting. For example, the so-called “primary parent” receives child support from the other, and is entitled to the Canada Child (Tax) Benefit. Together, these financial benefits may be considerable.
Parenting for married or divorced parents is decided under the Canada Divorce Act. All other parents or guardians need to proceed under the Alberta Family Law Act.
There are two aspects to any parenting order: decision making and parenting time.
Decision Making
Decision Making refers to the rights and responsibilities that each parent has when it comes to making major decisions about their child’s wellbeing—for example, healthcare, education, and their general wellbeing. Often decision making rights will include who can sign consent forms on behalf of the child, including consent to travel.
In Alberta, newly-separated couples share decision making by default, however, either parent may apply to the Court to specify decision making rights. The Court will consider the best interests of the child in making its decision.
Under Section 21(4) Alberta Family Law Act, parents are entitled to the following:
Except where otherwise limited by a parenting order, each guardian is entitled
(a) to be informed of and consulted about and to make all significant decisions affecting the child in the exercise of the powers and responsibilities of guardianship described in subsection (5), and
(b) to have sufficient contact with the child to carry out those powers and responsibilities.
Under Section 21(5) Alberta Family Law Act, parents have the following responsibilities:
Except where otherwise limited by law, including a parenting order, each guardian has the following responsibilities in respect of the child:
a) to nurture the child’s physical, psychological and emotional development and to guide the child towards independent adulthood;
(b) to ensure the child has the necessaries of life, including medical care, food, clothing and shelter.
Under Section 21(6) Alberta Family Law Act, parents have the following decision making powers:
Except where otherwise limited by law, including a parenting order, each guardian may exercise the following powers:
(a) to make day‑to‑day decisions affecting the child, including having the day‑to‑day care and control of the child and supervising the child’s daily activities;
(b) to decide the child’s place of residence and to change the child’s place of residence;
(c) to make decisions about the child’s education, including the nature, extent and place of education and any participation in extracurricular school activities;
(d) to make decisions regarding the child’s cultural, linguistic, religious and spiritual upbringing and heritage;
(e) to decide with whom the child is to live and with whom the child is to associate;
(f) to decide whether the child should work and, if so, the nature and extent of the work, for whom the work is to be done and related matters;
(g) to consent to medical, dental and other health‑related treatment for the child;
(h) to grant or refuse consent where consent of a parent or guardian is required by law in any application, approval, action, proceeding or other matter;
(i) to receive and respond to any notice that a parent or guardian is entitled or required by law to receive;
(j) subject to the Minors’ Property Act and the Public Trustee Act, to commence, defend, compromise or settle any legal proceedings relating to the child and to compromise or settle any proceedings taken against the child;
(k) to appoint a person to act on behalf of the guardian in an emergency situation or where the guardian is temporarily absent because of illness or any other reason;
(l) to receive from third parties health, education or other information that may significantly affect the child;
(m) to exercise any other powers reasonably necessary to carry out the responsibilities of guardianship.
Parenting Time
Parenting Time – This refers to the time a child physically spends in the care and control of a parent. Although parenting time is usually exercised in person, it may be exercised remotely (by phone or video) in certain circumstances. The type of parenting time is always decided as in the children’s best interests.
There are two main parenting types of parenting schedules: primary parenting and shared parenting.
- Primary Parenting – In this schedule, the child lives with one parent more than 60% of the time, while the other parent has parenting time less than 40% of the time. For example, if the child lives with mom, and stays with dad every second weekend, the mom is said to be the “primary parent”. In this parenting arrangement, child support is paid to the primary parent.
- Shared Parenting – In this schedule, the child lives with each parent more than 40% of the time (roughly 50:50). For example, the parents exchange the children on a rotating week-on/week-off schedule, then this would be considered a shared parenting arrangement. In this parenting arrangement, both parents typically pay each other child support, and the amounts are set off.
Common Parenting Issues
Once the general parenting arrangement is decided, parents will need to think about a number of other parenting issues. Common parenting issues include:
- Holiday Parenting – Will the parenting schedule change over Christmas Break or Summer Vacation? Will the parents share or alternate specific holidays like Easter or Thanksgiving?
- Exchanges – What time will the parents exchange the children? Where will the exchanges occur? Who will do the driving?
- Communication – How will the parents communicate with each other about the children? Are you on speaking terms with your spouse? Do you need communication to be in writing? Have you considered a parenting application like Our Family Wizard or Coparenter?
- Travel – Who is allowed to travel with the child? How much notice should the parent who wants to travel provide to the other parent? Who will hold onto the child’s passport?
- Conditions – Do you or your partner require any conditions on their parenting time? Does parenting time need to be supervised? This will depend on what is in the child’s best interests.
Feel free to call a lawyer at Morrison LLP to speak about the above issues.
Best Interests of the Children
When making a parenting order, the court may only consider the children’s “best interests”. Although this can mean just about anything, Section 16(3) of the Divorce Act lists some helpful factors, for example:
Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
This is a broad list, and ultimately the court will consider any factor that it believes is relevant to the child’s best interests.
Sometimes, the court will order the parents to enlist the help of a “parenting expert” to better understand the child’s needs. This is often done through something called a Practice Note 7 Intervention, wherein the parents hire a child psychologist who works with the family, and writes a report for the court.
Relocation Applications in Alberta
When one parent wants to relocate with the child such that the relocation will impact the other parent’s parenting time, that spouse will usually have to bring a mobility application—ie. they may need the court’s permission to move. In this case, the court will consider not only whether the move is in the child’s best interests, but how the move will impact the other parent’s parenting time.
Contact an Alberta Family Lawyer Today
Parenting can be one of the most difficult issues for parents to resolve on their own. This is where a family lawyer comes in. A family lawyer will be able to give you objective, reasonable advice when you need it most. Feel free to contact a lawyer or mediator at Morrison LLP at 587-758-1099 about your parenting question. The first 30 minutes of the call is free.
Although we are based in Edmonton, our family & divorce lawyers—and practicing mediators—are proud to serve much of northern Alberta, including the following communities:
- Edmonton & Area – Sherwood Park, Beaumont, Leduc, Fort Saskatchewan, St. Albert, Spruce Grove, Stony Plain.
- North – Athabasca, Morinville, Westlock, Gibbons, Barrhead, Redwater, Peace River, High Level, Fort McMurray.
- West – Drayton Valley, Edson, Hinton, Whitecourt, Devon.
- South – Camrose, Wetaskiwin, Millet, Calmar.
- East – Vegreville, St. Paul, Cold Lake, Bonnyville, Vermillion, Wainwright, Tofield.
