By Graeme Kluge
After a relationship breakdown, parents must reach a parenting agreement that spells out who has decision-making responsibility (formerly known as custody), parenting time (formerly known as access) and what level of child support is to be paid.
Over time, that agreement may no longer suit the parties involved since personal circumstances change. Some common reasons to consider modifying a parenting agreement include:
- Your children’s needs have changed. Maybe they want to participate in extracurricular activities at school but are unable to under the current parenting schedule.
- Your residence has changed. If one parent or both parents plan to move to a different location, there will have to be modifications to the agreement to address the new living arrangements.
- Changes in work schedules. A significant change in either parent’s work schedule will affect their ability to adhere to the existing parenting schedule.
- The children are getting older. As children grow, they will want more freedom and time alone than the existing parenting plan allows. Once they turn 18 children are considered adults and free to live where they choose.
- Safety. If there are concerns about the children’s well-being in one parent's care, a modification may be necessary to ensure their welfare. Allegations of child abuse must be taken seriously
- Adherence to the agreement. If one parent consistently fails to follow the terms of the parenting agreement it may be necessary to modify it to ensure it is enforceable.
- Children’s wishes. As the children mature, their preferences about which parent to live with may be considered when modifying a parenting agreement.
- Changes in a parent’s health. Accommodations may be necessary if one parent is physically unable to look after the children. This is especially true if one parent becomes an alcoholic or a drug addict, or is displaying signs of mental illness.
Changing the support payments
Support payments can also be increased or decreased, especially if the payor cannot meet the commitments set out in the agreement. Possible scenarios that could warrant a modification of child support include:
- A change in employment that results in a lower income.
- Changes in your child’s health that result in increased medical costs.
- A substantial change in travel expenses related to changes in visitation arrangements.
- Significant financial hardship, for whatever reason.
If the parenting plan was reached outside of court, a new agreement can be reached by the ex-partners through discussion or with help from a family mediator. If no agreement can be reached, the parent requesting the modification can apply to the court for direction.
If a judge made the original parenting agreement, the parents must apply to the court to have it changed. Click here for information about how to change a parenting agreement or consent order in Alberta.
The court can modify a parenting order if two factors can be shown:
- there has been a substantial or material change of circumstances affecting the welfare of the child; and
- the modification is in the best interest of the child.
A parent cannot ask the court to change an agreement just because they do not agree with it.
If one party re-marries or enters into a new relationship, it is not automatic grounds for a change in a parenting order. The parent requesting the change must show that the new relationship significantly affects the child’s care. Changes that would have been anticipated when the order was made are not considered material changes.
Approval is needed before relocation
If one partner with parenting time wants to move that could affect the parenting plan, especially if the children have a further distance to travel for parenting time. If their new residence is in the same relative area that may not be an issue. But if the move is to another city or province, that is likely to be considered a relocation.
A relocation generally means the parenting time schedule for the child will no longer work. It is important to look at each situation and the impact on the child. Sometimes even a move of a short distance can be a relocation if there will be a considerable impact on the parenting schedule.
Anyone with parenting responsibilities must give notice of their plan to relocate to the other parent and anyone else with contact under a contact order.
The relocation rules under the federal Divorce Act dictate that if you are planning to relocate, you must:
- give notice at least 60 days before the move; and
- provide specific details about the move, including your new address, contact information and how you believe the parenting and any contact schedule could be changed to help support the child’s relationships with other people affected by the relocation.
Contact us for advice
Anyone seeking a change to a parenting agreement should first consult with a family lawyer to understand their rights and obligations. The team at Demas Schaefer Family Lawyers has decades of experience in providing clients with constructive and creative solutions to get through the emotional and legal challenges of divorce, including crafting and modifying parenting agreements. Contact us for a free consultation.