Parenting and Child Custody in Alberta: Your Practical Legal Guide
This guide will cover key aspects of parenting and child custody in Alberta, providing you with valuable information, practical advice, and resources to help you make informed decisions and establish arrangements that serve the best interests of your children.
1. Introduction to Parenting and Child Custody in Alberta
Navigating the complexities of parenting and child custody in Alberta can be challenging, but understanding the legal framework and principles that govern these matters is essential to making informed decisions that serve the best interests of your children. In this section, we will provide an overview of the legal framework and principles, key terminology and concepts, the best interests of the child standard, and the differences between custody and parenting in Alberta.
1.1 Overview of the Legal Framework and Principles
In Alberta, the Family Law Act and the Divorce Act are the primary pieces of legislation that govern parenting and child custody matters. While the Family Law Act applies to both married and unmarried couples who are separating, the Divorce Act only applies to married couples who are seeking a divorce. Both Acts prioritize the best interests of the child when determining parenting arrangements and custody decisions.
1.2 Key Terminology and Concepts: Custody, Access, and Parenting Time
- Custody: Historically, custody referred to the legal authority and responsibility a parent has for making major decisions about a child's upbringing, such as education, health care, and religion. The term "custody" has been replaced by "parenting" in the Alberta Family Law Act, but it is still used in the Divorce Act.
- Access: Access refers to the time a parent spends with a child when they do not have primary custody or parenting responsibilities. Access may be scheduled (with specific dates and times) or unscheduled (based on mutual agreement between the parents).
- Parenting Time: Under the Alberta Family Law Act, parenting time refers to the time a parent spends with the child and is responsible for the child's care and upbringing during that period. Parenting time arrangements can be tailored to meet the unique needs of each family and can include various degrees of decision-making authority and responsibility.
1.3 The Best Interests of the Child Standard
Both the Family Law Act and the Divorce Act emphasize that the best interests of the child should be the primary consideration when determining parenting arrangements and custody decisions. This means that the court will prioritize the child's well-being, safety, and overall development over the preferences and desires of the parents. Factors that may be considered in determining the best interests of the child include:
- The child's physical, emotional, and psychological needs
- The child's relationship with each parent
- Each parent's ability to provide a safe, stable, and nurturing environment
- The child's preferences, if they are old enough and mature enough to express them
- The parents' ability to cooperate and communicate effectively in matters related to the child
1.4 Differences between Custody and Parenting in Alberta
In Alberta, the Family Law Act has replaced the term "custody" with "parenting" to better reflect the focus on the child's best interests and the ongoing involvement of both parents in the child's life. Parenting arrangements can be more flexible and adaptable than traditional custody arrangements, allowing for a variety of options that can be tailored to the unique needs of each family. These options can include:
- Sole parenting, where one parent has primary decision-making authority and responsibility for the child's upbringing
- Joint parenting, where both parents share decision-making authority and responsibility for the child's upbringing
- Shared parenting, where both parents spend a significant amount of time with the child and share in the decision-making process
By understanding the legal framework, principles, and key terminology related to parenting and child custody in Alberta, you can make informed decisions that prioritize your children's best interests and lay the foundation for a successful co-parenting relationship.
2. Types of Parenting Arrangements
Various parenting arrangements exist to accommodate the unique needs and circumstances of each family. Understanding the different types of arrangements can help you choose the one that best suits your family's situation. In this section, we will discuss sole custody and parenting, joint custody and parenting, shared parenting, parallel parenting, and provide tips for choosing the right arrangement for your family.
2.1 Sole Custody and Parenting
In a sole custody arrangement, one parent is granted the primary decision-making authority and responsibility for the child's upbringing. This includes making decisions about the child's education, health care, and religious upbringing. The other parent may have access to the child and may be involved in the child's life, but they do not have the same level of decision-making authority.
Under the Alberta Family Law Act, the concept of "sole custody" has been replaced with "sole parenting", which emphasizes the individual parent's responsibility during their parenting time. The non-custodial parent still has access to the child and may have input on major decisions, depending on the specifics of the parenting arrangement. Sole parenting may be appropriate in situations where one parent is better equipped to make decisions in the child's best interests, or where the parents have difficulty cooperating or communicating effectively.
Sole parenting may be appropriate in situations where one parent is unable or unwilling to take on the responsibilities of parenting or when there are concerns about the child's safety and well-being in the care of the other parent.
2.2 Joint Custody and Parenting
Joint custody refers to an arrangement where both parents share equal decision-making authority and responsibility for the child's upbringing. In this arrangement, both parents must consult with one another and agree on major decisions related to the child's care, education, health care, and religious upbringing.
In Alberta, the term "joint custody" has been replaced with "joint parenting" under the Family Law Act. Joint parenting focuses on the collaborative efforts of both parents in raising the child, even though they may not have equal parenting time. It's essential for parents in a joint parenting arrangement to maintain open lines of communication and demonstrate a willingness to cooperate for the well-being of the child. Joint parenting requires a high level of cooperation and communication between the parents, as they must work together to make decisions in the child's best interests.
Joint parenting may be suitable for families where both parents can effectively communicate and cooperate in the best interests of the child. It requires a willingness to work together and a commitment to putting the child's needs first.
2.3 Shared Parenting
Shared parenting is an arrangement where both parents spend a significant amount of time with the child and share decision-making authority and responsibility. Shared parenting may involve an equal or near-equal division of parenting time, with both parents assuming responsibility for the child's care and upbringing during their respective parenting periods.
Shared parenting may be a good option for families where both parents are actively involved in the child's life and can work together to make decisions in the child's best interests. It can provide a more balanced and stable environment for the child, with each parent contributing to the child's care and development.
2.4 Parallel Parenting
Parallel parenting is an arrangement where parents who have difficulty communicating and cooperating effectively co-parent their child by making decisions independently within their respective parenting domains. In parallel parenting, each parent assumes responsibility for the child's care and upbringing during their respective parenting time, with minimal interaction or communication between the parents.
Parallel parenting may be appropriate in situations where there is a history of conflict or high levels of tension between the parents, but both parents are still capable of providing a safe and nurturing environment for the child.
2.5 Tips for Choosing the Right Arrangement for Your Family
- Prioritize the child's best interests: Always keep the well-being, safety, and overall development of your child at the forefront of your decision-making process.
- Assess your ability to cooperate and communicate: Effective communication and cooperation are key factors in the success of joint and shared parenting arrangements. Be honest with yourself about your ability to work together with your ex-partner in the best interests of your child. If cooperation is difficult, consider alternative arrangements, such as parallel parenting.
- Consider the practical aspects: Take into account factors such as work schedules, living arrangements, and the child's extracurricular activities when determining the most feasible parenting arrangement.
- Be flexible and open to change: As your child grows and your family circumstances change, consider whether your parenting arrangements need to evolve as well.
3. Factors that Influence Parenting and Custody Decisions
When determining the most suitable parenting or custody arrangement for a family, courts prioritize the best interests of the child. To do so, they consider several factors that help assess which arrangement would be most beneficial for the child's well-being and development. Here are some of the primary factors that influence parenting and custody decisions, along with relevant Supreme Court of Canada decisions:
3.1 Children's Age and Developmental Needs
The age and developmental stage of a child play a significant role in determining appropriate parenting arrangements. Younger children often require more hands-on care and may benefit from frequent contact with each parent. In contrast, older children may have different needs, such as stable schedules and opportunities to maintain relationships with friends and participate in extracurricular activities. The child's needs should be the primary focus. Courts will consider the unique needs of the child at their current developmental stage when determining the best arrangement, as emphasized in the leading Supreme Court of Canada decision, Gordon v. Goertz,  2 S.C.R. 27.
3.2 The Relationship between the Child and Each Parent
The quality and nature of the child's relationship with each parent are crucial factors in determining parenting arrangements. Courts examine the emotional bonds between the child and each parent, as well as the parent's history of involvement in the child's life. In the case of Young v. Young, the Supreme Court of Canada recognized the importance of maintaining a meaningful relationship with both parents, provided that it serves the child's best interests. A parent consistently involved in the child's upbringing is more likely to be granted a significant role in the parenting arrangement (Young v. Young,  4 SCR 3).
3.3 Each Parent's Ability to Provide a Stable, Loving Environment
A stable and loving environment is essential for a child's well-being and development. Courts assess each parent's ability to provide such an environment by evaluating factors such as the parent's mental and physical health, history of substance abuse, history of domestic violence, and the overall stability of the parent's living situation (Nichols v. Nichols,  1 SCR 24). This approach aligns with the Supreme Court of Canada's decision in R.P. v. R.C.,  1 S.C.R. 795, which emphasizes the importance of a stable environment in child custody/parenting decisions.
3.4 The Child's Preferences (when appropriate)
In some cases, the court may consider the preferences of the child when determining the most suitable parenting arrangement. This typically applies to older children who are mature enough to express their preferences and understand the implications of their choices. The weight given to the child's preferences depends on factors such as the child's age, maturity, and the reasons for their preferences (Gordon v. Goertz,  2 SCR 27). The Supreme Court of Canada acknowledged the importance of the child's views and preferences in the case of A.C. v. Manitoba (Director of Child and Family Services) (2009), emphasizing that children's voices should be taken into account where appropriate.
3.5 Continuity and Stability in the Child's Life
Preserving continuity and stability in a child's life is crucial for their well-being and development. Courts consider the importance of maintaining the child's established routines, relationships, and connections to their community when determining parenting arrangements. This may include factors such as the child's current school, extracurricular activities, friendships, and proximity to extended family members (Lapierre v. Lapierre,  1 SCR 3). The importance of stability and continuity is emphasized in the Supreme Court of Canada's decision in New Brunswick (Minister of Health and Community Services) v. G.(J.),  3 S.C.R. 46.
3.6 The Parents' Ability to Communicate and Cooperate
Effective communication and cooperation between parents are vital for successful co-parenting. Courts assess the parents' ability to communicate, make joint decisions, and cooperate in matters related to the child's upbringing. Parents demonstrating a willingness to work together and prioritize their child's best interests are more likely to be granted a significant role in the parenting arrangements, as this will serve the child's best interests. By contrast, parents who are unable to put the needs of their children ahead of their own may see their parenting time and decision making powers drastically limited. Each case is different, and Courts will consider the specific facts and evidence at issue in each case on its own merits.
4. The Process of Establishing Parenting Arrangements
Establishing parenting arrangements can be a complex process, and it's essential to understand the various steps and options available to parents. The following outlines the typical process of establishing parenting arrangements in Alberta:
4.1 Negotiating a Parenting Plan
The first step in establishing parenting arrangements is for parents to negotiate and create a parenting plan. A parenting plan is a written document that outlines the roles and responsibilities of each parent, as well as the details of the child's schedule, such as pick-up and drop-off times, holiday arrangements, and decision-making responsibilities. Parents can work together, with or without the assistance of their lawyers, to create a plan that addresses the unique needs of their family.
4.2 Mediation and Collaborative Law
If parents are unable to reach an agreement on their own, they may consider alternative dispute resolution methods such as mediation or collaborative law. In mediation, a neutral third-party mediator helps the parents navigate their disagreements and work towards a mutually beneficial agreement. Collaborative law, on the other hand, involves each parent hiring a collaboratively-trained lawyer to work together and find solutions that are in the best interests of the child. Both methods aim to resolve disputes outside of court and can be more cost-effective and less adversarial than litigation.
4.3 Court-Ordered Assessments and Evaluations
In some cases, the court may order assessments or evaluations to help determine the most appropriate parenting arrangements. These assessments can be conducted by mental health professionals, social workers, or other qualified experts who will evaluate the family's dynamics and make recommendations based on the best interests of the child. The court will take these recommendations into consideration when making decisions about parenting arrangements.
4.4 Going to Court: What to Expect
If parents are unable to reach an agreement through negotiation, mediation, or collaborative law, they may need to go to court to have a judge decide on the parenting arrangements. In Alberta, the process typically begins with filing an application for a parenting order with the Court of Queen's Bench.
Before the hearing, both parents will have an opportunity to submit affidavits and other evidence to support their positions. During the hearing, each parent will present their case, and the judge will ask questions and review the evidence to determine the most appropriate parenting arrangement based on the best interests of the child.
It's important to remember that going to court can be a lengthy, costly, and emotionally challenging process. Parents should consider all their options and seek legal advice before deciding to pursue litigation.
By understanding the various stages of establishing parenting arrangements, parents can make informed decisions and choose the most suitable path for their family. Remember that the ultimate goal is to create a stable, supportive, and nurturing environment for the child, regardless of the specific arrangement chosen.
5. Modifying and Enforcing Parenting Arrangements in Alberta
Parenting arrangements may need to be modified or enforced over time, as circumstances change or if one parent fails to comply with the agreed-upon terms. Understanding the process for modifying and enforcing parenting arrangements in Alberta is crucial for parents facing these situations.
5.1 Circumstances that May Warrant a Modification
There are various circumstances that may warrant a modification of a custody order or parenting agreement, such as:
- A significant change in the child's needs or circumstances, such as a medical issue or a change in school
- A substantial change in a parent's circumstances, including relocation, job loss, or illness
- Evidence of parental alienation or a deterioration in the relationship between the child and a parent
- A parent's inability or unwillingness to comply with the existing order or agreement
It's important to note that minor changes or disagreements are generally not sufficient grounds for modifying a parenting arrangement. The court will only consider modifications if there has been a material change in circumstances that affects the child's best interests.
5.2 Steps to Modify a Custody Order or Parenting Agreement
If you believe a modification of your custody order or parenting agreement is necessary, follow these steps:
- Discuss the proposed changes with the other parent: Open communication is crucial, and you may be able to resolve the issue amicably without going to court.
- Seek legal advice: Consult a family lawyer to discuss your situation and determine the best course of action.
- Attempt mediation or collaborative law: If you cannot reach an agreement with the other parent, consider alternative dispute resolution methods, such as mediation or collaborative law, to resolve the issue outside of court.
- File an application with the court: If all other attempts fail, you can file an application with the Court of Queen's Bench to request a modification of your custody order or parenting agreement. You'll need to provide evidence demonstrating the material change in circumstances and how the proposed modification serves the best interests of the child.
5.3 Enforcing Custody and Access Orders
If one parent fails to comply with a custody or access order, the other parent may need to take legal action to enforce the order. In Alberta, enforcement measures can include:
- Filing a contempt application with the court, which may result in fines or imprisonment for the non-compliant parent
- Seeking a police enforcement clause in the custody order, allowing law enforcement to intervene if necessary
- Requesting a "make-up" access order to compensate for lost parenting time
If you're facing issues with enforcing a custody or access order, consult a family lawyer to discuss your options and determine the best course of action.
Understanding the process for modifying and enforcing parenting arrangements in Alberta is essential for parents navigating these challenging situations. Always prioritize the best interests of your child and seek legal advice to ensure your rights and your child's well-being are protected.
6. Special Considerations in Parenting and Custody Disputes in Alberta
In some parenting and custody disputes, special considerations may arise that require careful attention and expert legal guidance. High-conflict situations, allegations of abuse, parental alienation, and relocation or mobility issues can significantly impact the court's decisions and the parties involved.
6.1 High-Conflict Situations and Allegations of Abuse
High-conflict situations and allegations of abuse can present unique challenges in custody disputes. The court must prioritize the safety and best interests of the child while carefully examining the evidence presented. In cases involving allegations of abuse, the court will consider the nature and severity of the abuse, as well as its impact on the child. If abuse is proven, the court may restrict or deny access to the abusive parent or require supervised visitation to protect the child.
It's crucial to gather and present credible evidence to support any allegations of abuse and to work with an experienced family lawyer to ensure the child's safety and well-being are prioritized.
6.2 Parental Alienation
Parental alienation occurs when one parent undermines the relationship between the child and the other parent, often through manipulation or disparaging comments. Parental alienation can have severe emotional and psychological consequences for the child and the targeted parent.
Courts may take action to remedy the situation, such as ordering family therapy, modifying the parenting arrangement, or even changing custody if it's in the child's best interest. In the case of SK v DG, 2022 ABQB 425, the Court of King's Bench of Alberta recognized the seriousness of parental alienation and the potential harm it can cause to the child's emotional well-being, summarizing the issues as follows (at paragraph 177):
"Alienation is a legal determination, usually requiring expert evidence. A finding of parental alienation must be determined on a case-by-case basis: Malhotra v Henhoeffer, 2018 ONSC 6472[Malhotra] at para 97. A long list of possible indicators for alienation developed by experts has been utilized by the courts: Malhotra at paras 108 and 109. When determining whether alienation exists in a particular case, courts generally analyze the facts and weigh the opinion of experts: Malhotra at para 99. However, it is also recognized that since alienation is a legal concept as opposed to a mental health diagnosis, the court can make a finding based upon an analysis of the facts alone: Malhotra at para 107 and VMB v KRB, 2014 ABCA 334 at para 16."
Allegations of alienation or coaching must be treated with caution. Courts should be careful to rely on allegations of alienation as justification for silencing the voice of the child or according to their voice minimal weight: C. Tempesta, “Legal Representation as a Necessary Element of Children’s Access to and Participation in Family Justice” Excerpted from M. Paré et al, eds. Children’s Access to Justice: A Critical Assessment, (Cambridge, UK: Intersentia, 2022) at 204 (citations omitted).
Justice Martinson and Dr. Margaret Jackson state that a court must determine whether there is in fact alienation and that caution must be exercised to ensure that a court does not prematurely conclude a child cannot form their own views because of alienation. The authors state that the “question of whether the child’s views have been “tainted” ought to be left to be determined as a question of due weight to be given to the views.”: Justice Donna Martinson and Dr. Margaret Jackson, “The 2021 Divorce Act: Using Statutory Interpretation Principles to Support Substantive Equality for Women and Children in Family Violence Cases” (2021) 5 Family Violence & Family Law Brief, The FREDA Centre for Research on Violence Against Women and Children at page 15.
Parental alienation involves a number of complex legal, evidentiary and practical issues. These can be particularly fraught situations. A skilled family lawyer can assist in navigating these situations.
6.3 Relocation and Mobility Issues
Relocation or mobility issues arise when one parent wants to move away with the child, potentially impacting the other parent's access and relationship with the child. In the case of Gordon v. Goertz, 1996 CanLII 191 (SCC), the Supreme Court of Canada established a framework for determining whether a proposed move is in the child's best interest. The court will consider factors such as the reason for the move, the impact on the child's relationship with the other parent, and the potential benefits or disadvantages of the relocation.
In determining the best interests of the child under s. 17(5), courts must focus on the impact of the change of residence on the existing custody order and the appropriate modifications to access as the case may be, and generally not proceed to a de novo appraisal of all the circumstances of the child and the parties, since s. 17(5) of the Act provides that “the court shall take into consideration only the best interests of the child as determined by reference to that change”. This particular wording is indicative that where the change consists of the proposed relocation of the child by the custodial parent, what must be ascertained is the impact of such relocation on the existing custody order which must be assumed to properly ensure the child’s best interests. The best interests of the child are rightly presumed to lie with the custodial parent.
The non‑custodial parent bears the onus of showing that the proposed change of residence will be detrimental to the best interests of the child to the extent that custody should be varied or, exceptionally, where there is cogent evidence that the child’s best interests could not in any reasonable way be otherwise accommodated, that the child should remain in the jurisdiction. The proposed change of residence of the child by the custodial parent will not justify a variation in custody unless the non‑custodial parent adduces cogent evidence that the child’s relocation with the custodial parent will prejudice the child’s best interests and, further, that the quality of the non‑custodial parent’s relationship with the child is of such importance to the child’s best interests that prohibiting the change of residence will not cause detriment to the child that is comparable to or greater than that caused by an order to vary custody. Where there is an agreement or court order explicitly restricting the child’s change of residence, the onus should shift to the custodial parent to establish that the decision to relocate is not made in order to undermine the access rights of the non‑custodial parent and that he or she is willing to make arrangements with the non‑custodial parent to restructure access, when appropriate, in light of the change of residence of the child.
Navigating these special considerations in parenting and custody disputes requires a deep understanding of the law and a strategic approach to advocating for your rights and your child's best interests. Working with an experienced family lawyer can make a significant difference in achieving a favorable outcome.
7. Additional Resources for Parents in Alberta
Navigating parenting and custody disputes can be challenging, but you don't have to face it alone. Numerous resources are available to parents in Alberta to help you better understand the process, develop effective co-parenting strategies, and improve communication and conflict resolution skills.
7.1 Parenting Courses and Support Groups
Various organizations offer parenting courses and support groups to help parents better understand their children's needs, develop effective parenting strategies, and build support networks with other parents in similar situations. Some recommended programs in Alberta include:
- Parenting After Separation - A free, mandatory course for parents involved in custody disputes, provided by the Government of Alberta. The course covers essential topics such as the impact of separation on children, communication strategies, and legal processes.
- Parenting Coordination - A process where a trained professional helps separated or divorced parents address ongoing parenting issues, make decisions together, and reduce conflict.
- DivorceCare - DivorceCare is a network of support groups that offer help and healing for people going through separation or divorce. There are several DivorceCare groups in Calgary and the surrounding areas. You can find a group near you by visiting their website and searching for local sessions: https://www.divorcecare.org/
- Families Matter - Families Matter is a Calgary-based organization that offers various programs and services to support families, including parenting courses, workshops, and support groups. They provide resources for families going through separation or divorce, as well as parenting education and assistance. For more information, visit their website: https://www.familiesmatter.ca/
7.2 Books and Websites on Co-Parenting and Child Custody
Educating yourself on co-parenting and child custody can help you better understand the legal process and make informed decisions. Some recommended books and websites include:
- "The Co-Parenting Survival Guide" by Elizabeth Thayer and Jeffrey Zimmerman - A practical guide to navigating the challenges of co-parenting after separation or divorce.
- "Mom's House, Dad's House" by Isolina Ricci - A comprehensive guide to creating two happy homes for your children after a separation or divorce.
- "OurFamilyWizard" - A website and app designed to facilitate communication and organization between co-parents, featuring shared calendars, expense tracking, and secure messaging.
7.3 Tips for Effective Communication and Conflict Resolution
Maintaining open and respectful communication with your co-parent is essential for successful co-parenting and promoting your child's best interests. Here are some tips to improve communication and resolve conflicts:
- Focus on your child's needs - Keep discussions centered on your child and their well-being.
- Use "I" statements - Express your feelings and concerns without blame, using statements like "I feel..." or "I am concerned about...".
- Practice active listening - Give your co-parent your full attention when they speak, and avoid interrupting or becoming defensive.
- Stay calm and composed - Approach conversations with a level head and a willingness to find common ground.
- Seek professional help if needed - If communication and conflict resolution continue to be challenging, consider working with a mediator, counselor, or parenting coordinator to facilitate discussions and reach agreements.
By leveraging these resources and focusing on your child's best interests, you can better navigate the complexities of parenting and custody disputes in Alberta. Remember, working with an experienced family lawyer can also provide invaluable support, guidance, and advocacy throughout the process.