By Jaskiran Bajwa
The breakdown of a relationship can lead to pain and resentment for both parties. That is especially true if there are children involved, as parents may disagree on what roles they will continue to play in their children’s lives. If they cannot reach an agreement, the case will likely end up in mediation or court.
Parenting arrangements (formerly known as “custody” and “access”) are governed by the federal Divorce Act. Where the parents are not married or not seeking to divorce, the relevant law is Alberta’s Family Law Act.
Since there is no simple template for determining the parenting arrangement, parents are advised to seek the advice of a family lawyer. All parents have moral and legal obligations relating to their children. The team at Demas Schaefer can describe those rights and obligations to you and guide you through the process, ensuring that your children are appropriately cared for and looked after during this time of stress and anxiety.
Apply for a consent order
Unless the court or the parents have decided otherwise, both parents have equal rights of decision-making responsibility and parenting time involving any and all children.
If you and your ex-partner agree on a parenting arrangement, you can apply to have these terms made into a Consent Order – a formal agreement between you and the other parent that is filed with the Court. It will outline:
- decision-making responsibility (formerly known as “custody”);
- parenting time (formerly known as “access”);
- child support; and
- spousal or partner support.
The province provides detailed information about what is required in the Consent Order that suits your situation. If you are self-represented then it must be signed in front of at least one witness. The witness would then be required to sign in front of a commissioner for oaths. If you have legal counsel then your lawyer will sign on your behalf. Once signed the order can be filed in the Alberta Court of Justice (formerly the Provincial Court of Alberta) or the Court of King’s Bench of Alberta, typically in the jurisdiction where the children reside.
Courts can step in
When parents are married, they share all of the powers, entitlements and responsibilities of raising children. If they separate and file for divorce, the court can decide who has decision-making responsibility or if that is to be shared. The court can also decide what parenting time each one will have. Decision-making authority relates to major decisions about a child, not day-to-day decisions, which are generally made by the parent in whose care the child is in when such a decision needs to be made. Major decisions can include; where the child resides, what school the child attends, whether the child can travel internationally without consent, medical treatment etc.
There are generally three types of decision-making arrangements:
- One parent makes all of the decisions about the child. This is not generally something the Court in Alberta orders unless the other parent is absent, shows no interest in being involved or does not have the capacity to do so;
- Decisions about the child are jointly shared. This is what is most commonly ordered by the court and permits both parties to provide input on major decisions, with the parties expected to come to mutual agreement before a decision is made; or
- One parent has sole decision-making authority on some matters but decision-making is shared on other matters.
Generally speaking, there are three types of parenting time arrangements.
Primary parenting: This is where the child resides primarily with one parent and that parent has care and control of the child over 60 per cent of the time.
Shared parenting: Parents split their time with the child more or less equally. Parenting is considered “shared” so long as each parent has the child residing with them and under their care at least 40 per cent of the time.
Split parenting: If you have two or more children one child may live mostly with you while the other spends more time with the other parent.
A child’s best interest
In every case, the court has to determine what sort of structure serves the best interests of the children. According to the Canadian Bar Association (CBA), that is because Article 3(1) of the UN Convention on the Rights of the Child states that “all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
The CBA goes on to state that the “interests of the child” is a substantive right … is aimed at the child’s holistic development and requires a rights-based approach that promotes the child’s human dignity: adult judgment cannot override the child’s rights.”
The Family Law Act provides guidance for judges to use when deciding what is in the child’s best interests. It states that when making a decision, the court must look at these factors:
- the child’s physical, psychological and emotional needs;
- their need for stability;
- their age and stage of development;
- who was previously caring for the child;
- the preference of the child;
- the relationship between the child and each parent;
- the ability of each parent to care for the child;
- the benefit to the child in developing and/or maintaining a relationship with each parent;
- any criminal charges or convictions; and
- any family violence.
Recent amendments to the Divorce Act see it now having specific factors for a court to consider under the best interest test that are similar to those set out above, and with the primary consideration being the child’s physical, emotional and psychological safety, security and well-being.
Your child has a voice
Before you start to make decisions about parenting arrangements, depending on the age of the child and the child’s stage of cognitive development, it is important that parents try to understand their children’s thoughts and feelings about what is happening and how it is affecting them.
Children are thought to have a “voice” but not necessarily a “choice” in relation to the parenting schedule. While children can give input into decisions that will affect their lives, it is the parents and, if they cannot agree, the court that will make the final decision so long as the child is under the age of majority and not married.
Call us for advice
The rules and circumstances that govern parenting arrangements are complex. The lawyers at Demas Schaefer advise you on your best options while always keeping the best interest of the children in mind. Call us for a free consultation.