Custody

When parents separate, they need to discuss and agree on a number of things relating to their children. An excellent place to start is to both take the free online course called Parenting After Separation.

Parents need to agree on:

  • Who is a guardian?
  • How will they make major decisions about their child?
  • What will be the parenting schedule going forward?

A parenting schedule can often be thought about conceptually as covering a 14 day, or two week period, which will repeat throughout the year.

Parents are strongly encouraged to come to their own agreement on what schedule would best suit their particular child’s needs. Absent agreement by the parents, a third party may have to make that decision.

Some schedules:

  • Every second weekend, with or without additional time;
  • A 9/5 split;
  • An 8/6 split;
  • A 2/2/5 schedule;
  • Week on / week off.

Ultimately, the parenting schedule that you choose for your child will also have an effect on how child support is calculated.

In addition to a regular parenting schedule, parents will need to determine how to address the following non-regular times:

  • The child’s school breaks – Christmas, Easter / Spring, Summer, other PD days;
  • The child’s birthdays;
  • Mother’s Day / Father’s Day;
  • Etc.

A comprehensive guide to creating a parenting plan is included in the Parenting After Separation Workbook.

Decision-making for children for major decisions, when each parent is a guardian, will generally be joint. Major decisions include things like vaccinations, choice of daycare, choice of school, major dental work, major surgery.

However, the courts will be reluctant to order joint decision-making if there is ample evidence that it would not be in the child’s best interest to do so.

Many options are available for parents who are struggling to reach a consensus on some of these major decisions.

A consultation with a lawyer is always a good place to start, and then parents are free to choose one of the following to assist them in resolving their issues, which can all be with or without a lawyer:

  • attending with a parenting expert for mediation / education;
  • attending at mediation through the Calgary Court Centre (which is free of charge for people who meet their income guideline);
  • attending at mediation and / or arbitration;
  • agreeing to a more formal process of parenting coordination;
  • attending a Judicial Dispute Resolution meeting with a judge, which can be binding or nonbinding;
  • ultimately, seeking a Court Order.

Mobility Applications

We live in a mobile world. When one parent wishes to move with the child, and no agreement is reached, a third party will need to make a decision, whether that is an arbitrator or a judge.

A detailed plan should be prepared outlining the facilities available in the proposed locale as compared to those facilities in the child’s current location. Considerations include but are not limited to: employment opportunities, cost-of-living, availability of healthcare and education, social services and support, the cultural environment and the economic profile of the area. While this list is not exhaustive, should give you some idea as to what the court will consider. It is also important to have an accurate description of what care has existed for to date by both parents.

Assessments

An assessment by a parenting expert can be very helpful to parents, and ultimately, to the court, to decide what is in the child’s best interests.

There are a variety of assessments available and the following is a very brief list and description of some of the available assessments:

  • A Bilateral Parenting Assessment (also known as a Practice Note 8 Assessment). A parenting expert will do extensive interviews with both parents, both parents will do psychological testing, the parenting expert will observe both parents interact with their child, and will review the parenting plans proposed by each parent, and then write a comprehensive report summarizing his or her opinions and making recommendations regarding what kind of parenting arrangement would be in the child’s best interests.
  • A Voice of the Child Report. A parenting expert will meet with a child a number of times to determine the child’s views and preferences. The weight given to a child’s views and preferences depends on the maturity of the child.
  • Risk Assessment (also known as a parent psychological evaluation or a unilateral parenting assessment). The parenting expert cannot make recommendations regarding custody or access, but may comment on what if any risk factors are present which may affect the parents ability to reliably meet the needs of the child.

Lawyer for the Child

At present, there are two options for children to be represented by legal counsel when their parents separate. Any time legal counsel is appointed for the child, it must be by the agreement of both guardians, or by court order.

  1. Hiring a lawyer privately. Some senior children’s lawyers have more than 30 years of experience representing children.
  2. Hiring a lawyer through Legal Aid Alberta.

Lawyers for children that are involved in the child welfare system are appointed a lawyer through LRCY (Legal Representation of Children and Youth).

An amendment was made to the Divorce Act, R.S.C. 1985. This amendment took effect on March 1st, 2021.

Some notable changes include:

  • To emphasize the best interests of the child, the Divorce Act now features concepts and words that focus on relationships with children, such as parenting time, decision-making responsibility and contact. The term “parenting order” replaces “custody order” throughout the Act, for instance. Similarly, the term “contact order” describes an order that sets out time for children to spend with important people who are not in a parental role, such as grandparents.
  • Elaborating what factors are to be considered by the Court when making a decision about Children:

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,

  1. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
  2. 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.

  • A more comprehensive definition of family violence. The court must consider the impact of family violence on parenting and contact arrangements, including its impact on the ability and willingness of the person who engaged in family violence to care for and meet the needs of the child. In cases of family violence, the court must also consider whether to require the parties to co-operate on matters related to the child.