Parenting & Custody Lawyer in Alberta

The law stopped using the words custody and access several years ago, and the change was more than vocabulary. Parenting cases in Alberta now turn on two questions, being who the child lives with and when, called parenting time, and who makes the significant decisions about health, education, religion and the like, called decision-making responsibility. Both are decided on one test, the best interests of the child, and nothing else.

Which Act applies

Married parents who are divorcing proceed under the federal Divorce Act. Unmarried parents, and married parents who are not seeking a divorce, proceed under Alberta’s Family Law Act, which uses the language of guardianship, parenting orders and contact orders but applies the same best interests test. In practice the two systems produce the same kinds of orders, and the firm works under both.

What the Court weighs

The best interests test is not a general impression. The legislation lists the factors, and they include the child’s needs given their age and stage, the child’s relationship with each parent and with siblings and grandparents, each parent’s willingness to support the child’s relationship with the other, the history of care, the child’s views where they can be ascertained, the child’s cultural and linguistic heritage, any family violence and its impact, and each parent’s ability to communicate and cooperate on matters affecting the child.

Two of those carry more weight than parents expect. The history of care matters, because a court is reluctant to disturb an arrangement that is working for the child, and family violence is defined broadly, reaching threats, harassment and patterns of coercive and controlling behaviour as well as physical harm, and it bears directly on whether an order requiring the parents to cooperate is realistic.

What a parenting plan should contain

A good plan is specific enough that nobody has to negotiate the ordinary week. It sets the regular schedule, the holiday and summer rotation, how exchanges happen and where, how decisions are made and what happens when the parents disagree, how the parents communicate, and how the child’s things and information move between homes. It also says how the plan changes as the child gets older, which is the provision most often missing from plans that end up back in court.

Where the parents cannot agree, the Court can order any of those terms, and it can order supervised parenting time, exchanges through a third party, or communication through a monitored application where the circumstances call for it.

Moving with a child

Under the Divorce Act, a parent who intends to relocate with a child must give the other parent at least sixty days’ written notice in the prescribed form, and the other parent has thirty days to object. If there is an objection, the move cannot proceed without a court order, and which parent bears the burden of proof depends on how parenting time has been shared.

For unmarried parents under Alberta’s Family Law Act, there is no equivalent fixed notice period in the statute, and the question is decided on the child’s best interests, though an existing order or agreement may set its own requirements and moving without notice weighs heavily against the parent who does it. Where a parent fears a child will be taken without consent rather than through the relocation process, that is an urgent application, and the Court treats it as one.

When an order is not being followed

Where parenting time is being denied, the arrangement does not correct itself, and the Court can order make-up time, vary the arrangement, impose consequences, and in defined circumstances add a police enforcement clause. Each of those requires an application supported by a record, which is why the firm advises clients to log every missed exchange with the date, the reason given and the reply, from the first one.

Where the firm can act

Advice, parenting plans and consent orders are available to parents anywhere in Alberta. Contested parenting applications are taken only where the file proceeds through the Calgary Courts Centre, which covers Calgary and the surrounding communities in the Calgary judicial district. The Parenting After Separation course is required before a contested application under the Court’s Family Focused Protocol, and the firm will tell you on the first call whether your matter can be run here. The practice is virtual, so meetings happen by video, telephone and email, with in-person meetings available on request in Cochrane or in Calgary.

If you need a parenting arrangement put in place, changed or enforced, call (587) 328-3328.

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Frequently Asked Questions

What replaced custody in Alberta?

Parenting time and decision-making responsibility. Parenting time is the schedule and who the child is with; decision-making responsibility is authority over significant decisions such as health, education and religion. Either can be shared or allocated to one parent.

At what age can a child decide where to live?

There is no fixed age. The child’s views are one of the listed factors, given weight according to the child’s age and maturity, and they are usually brought before the Court through a report or a counsel for the child rather than by the child giving evidence.

Can my ex move away with our child?

Under the Divorce Act, only after sixty days’ written notice, and not at all if you object within thirty days and no court order permits it. Under the Family Law Act the question is decided on best interests, and an existing order or agreement may set its own terms.

What can I do if parenting time is being denied?

Keep a dated record of each missed exchange and apply. The Court can order make-up time, vary the arrangement, impose consequences and, in defined circumstances, add a police enforcement clause.

Parenting and Decision-Making in Alberta