Custody, access, parenting, contact and guardianship.

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Ensuring the proper care and well-being of children is of the utmost importance to all parents.  This can sometimes become challenging on the breakdown of a relationship. All parents have both moral and legal rights and obligations relating to their children. We can assist you by describing those rights and obligations to you and by guiding through you the process of ensuring your children are appropriately cared for and looked after during this time of extreme stress and anxiety.

What is the difference between custody / access / parenting time / contact / guardianship?

Custody, access, parenting, contact and guardianship all get bandied about, often interchangeably. While some of the terms are equivalent, they are not all the same.

Custody is a term referred to in the Divorce Act, so only applies to divorcing couples. Custody generally refers to who will make major decisions about a child and includes a right to obtain information about your child from third parties. 

Access is also a divorce term.  Access is the amount of time a parent spends with the child and generally refers to the parenting schedule for a parent that has less than 40% of the time with a child.  The Divorce Act is in the process of being amended to change the term “access” and replace it with the term “parenting”. 

Parenting is a Family Law Act term. The Family Law Act is Alberta legislation.  The terms “parenting” is now routinely being applied to divorcing couples as well. It is like access – it means how much time a parent has with a child. If a person has the child less than 40% of the time, then that parent is an access parent. If a parent has the child between 40% and 60% of the time, then the parents have “shared parenting”. If a parent has the child over 60% of the time, then that parent has primary parenting.

Contact is a Family Law Act term and applies to people who have time with a child, but no real rights, obligations or decision-making authority in relation to the child. 

Guardianship is a Family Law Act term related to decision-making, right to information, and the moral and legal obligations that come with being the guardian of a child.

How is parenting or custody determined?

The Court looks at the best interests of the children when it decides custody, access, parenting time, and guardianship. The children’s best interests are the sole factor considered by the Court. The needs, wants, and desires of the parents are secondary to the best interests of the children and should not be considered by the Court.

The Divorce Act and, in Alberta, the Family Law Act set out some of the factors the court will consider in determining the best interests of a child. These include protecting the physical, emotional, and mental well-being of a child, the historical parenting arrangements, any plans for raising the child, any family violence and the impact of such on a child, the ability of the parents to meet the needs of the child, and the “Maximal Contact Principle”. 

The Maximum Contact Principle comes from section 16 of the Divorce Act. It states that it is in the best interests of a child to have as much contact with both parents as possible if doing so is in the best interests of the child and each parent is willing and able to facilitate such contact. The Maximum Contact Principle has taken on great importance because it is the only factor that is specifically listed in the Divorce Act in relation to the best interests analysis. It should be noted that the Divorce Act is in the process of being amended (anticipated to be done effective March 1, 2021) to remove the Maximum Contact Principle from the legislation.  The federal government has decided to do this because the Maximum Contact Principle has led some courts to take the position that there is a presumption that parenting should be shared as the default position.  Courts in Edmonton have very often leaned toward favouring shared parenting, though each case is unique and fact specific and there is no guarantee that a court will order shared parenting in your case.  Courts in other jurisdictions do not necessarily lean in favour of shared parenting like the Courts in Edmonton have typically done.  It will be interesting to see how the courts react to this change and whether or not it leads to less instances of shared parenting orders.

What is custody?

The Divorce Act is federal legislation that applies to all married residents of Canada.  Custody is a term used in the Divorce Act for children of married people.  It generally relates to who gets to make decisions and obtain information about a child, though sometimes it can be referred to as a parent having primary care of the child – defined as having care of the child over 60% of the time.

In terms of decision making, what is being referred to is big decisions such as place of residence, type of cultural upbringing, type of religious upbringing, if any, non-necessary medical procedures, whether or not the child can travel internationally etc.  It does not mean day-to-day decisions, which will generally be made by the parent who is exercising time with the child when the decision is made.

In terms of right to information, this is about obtaining information about the child from third parties – things such as report cards or medical records.

If one parent has sole custody, this means that parent is entitled to make all major decisions about the child to the exclusion of the other.  It also means that the other parent is not entitled to obtain information about the child from third parties.

If custody is shared, it means that both parents have a right to be involved in and make joint decisions about major things related to the child, and both parents are entitled to obtain information about the chid from third parties.

What is parenting time?

While the Family Law Act of Alberta can be used by both married and unmarried parents, it is generally only used by unmarried parents.

References in the Family Law Act to how often each party has a child is called parenting time.  In terms of where a child lives, if a parent has parenting time with a child over 60% of the time that parent is considered to have primary care or primary parenting with the child residing primarily in their residence.  

If both parties have the child over 40% of the time, this is considered shared parenting.  

If each parent has a child living primarily with them, this is called split parenting.  Split parenting is extremely rare and really only occurs when the parties agree.

What is access?

Access is the term used in the Divorce Act to refer to how often each party has a child.  The Divorce Act is scheduled to be amended effective March 1, 2021 at which point the term “access” will be replaced with the term “parenting”.  Use of the terms access and parenting have been essentially interchangeable up until now in any event.

What is guardianship?

In Alberta, every child under the age of majority must have a guardian (with the exception of a minor child who is married).

Guardianship is a Family Law Act term. Being a guardian means having the right to be consulted and involved in making major decisions about a child such as place of residence, which school the child will attend and whether or not the child should undergo any medical procedures.

Day-to-day type decisions are typically made by the guardian who is exercising time with the child at the time the decision is being made.

It should be noted that guardianship is not an all or nothing proposition.  Rather, any powers of guardianship can be limited or expanded by the court.  In other words, if there are multiple guardians, one guardian may be granted the right to make decisions about certain aspects of the child’s well-being to the exclusion of the other guardian, while the other guardian may be granted rights to make decisions about other aspects.  If you are a guardian and the court has not indicated a demarcation of rights then all guardians may exercise the powers, rights and responsibilities that come with guardianship.

Just because you are a parent does not mean you are a guardian. To be a guardian you need to acknowledge that you are a parent of the child and you need to show that you intend to be responsible for the child within one year of becoming aware of the pregnancy or learning of the child being born. If you are a woman, you need to bring the child to term and give birth.

Guardianship carries with it both rights and obligations.  A guardian is typically involved in major decision-making about the child and to a right to obtain information about the child from third parties. Obligations are to be exercised based on the best interests of the child, and include nurturing the child’s physical, psychological and emotional development and ensuring the child has the necessaries of life, including medical care, food, clothing and shelter.

How is guardianship determined?

A parent is not automatically a guardian of a child.  In order for a parent to establish guardianship rights the parent must have acknowledged that she or he is a parent of the child and demonstrate an intention to assume guardianship responsibilities within one year of the earlier of either becoming aware of the pregnancy or becoming aware of the birth of the child.  An intention to assume guardianship responsibilities is determined by, among other things:

  • Being married to the other parent at the time of the child’s birth or marrying the other parent after the child’s birth;
  • Being an adult interdependent partner of the other parent at the time of the child’s birth or becoming the other parent’s adult interdependent partner after the child’s birth;
  • Entering into a written agreement with the other parent;
  • Cohabiting with the other parent for a least 12 consecutive months during which time the child is born;
  • Carrying the pregnancy to term; and
  • Voluntarily providing or offering to provide reasonable direct or indirect financial support other than pursuant to a court order.

No one factor is paramount.  The court will consider all factors and then make a decision based on a cumulative analysis of those factors that apply.

How is parenting time determined?

Parenting time refers to how long each parent has with the child.  The court’s consideration is always based on the perspective of the child during which the court will decide based on what is in the best interests of the child.  The Divorce Act does not give specific factors for a court to consider, whereas the Family Law Act does.  The Family Law Act specifically lists factors that the court must consider, which factors include, among other things:

  1. Ensuring the greatest possible protection of the child’s physical, psychological and emotional safety;
  2. All of the child’s needs and circumstances including:
    • Stability for the child;
    • History of care;
    • The child’s cultural, linguistic, religious and spiritual upbringing and heritage;
    • The child's own views to the extent it is appropriate to obtain them (it should be noted here that there is no magical age at which a child gets to choose where he or she resides.  The older a child gets the more carefully the court will consider his or her wishes, however, the ultimate determination remains with the court.  This is so that children are not placed in the middle of a tug-of-war, being forced to make a decision between parents);
    • Any family violence;
    • The nature strength and stability of the relationship between child and parent and child and others in each household;
    • The ability and willingness of each person to care for and meet the needs of the child and to communicate and cooperate with the other person; and
    • Any civil or criminal proceedings that are relevant to the safety and well-being of the child.

The Court will then balance these factors and determine what parenting schedule is in the best interests of the child.

Who can apply for guardianship?

Although it seems that there are a number of legislative restrictions on who can apply to become a guardian, the court has broad discretion and the power to waive those restrictions.  To be clear, if the court finds it is in the child’s best interests, any person may be appointed as a guardian.

The court may make an order appointing a person as a guardian of a child if the person applying is an adult and has had the child in his or her care for at least six months or, if the person is a parent but is not a guardian of a child. 

If there are good reasons, the court may waive the requirement that a person has had the child in his or her care for six months prior to making a guardianship order.

A guardianship order shall not be made without the consent of:

  • Each guardian of the child.
  • The child if the child is over the age of 12; and
  • The proposed guardian.

Again, the court can dispense with the consent of one of the aforementioned individuals if there are good reasons for doing so.

A child may also apply to the court to appoint a person as their guardian if the child has no guardian or if none of the child’s guardians is willing or able to exercise the powers of guardianship.

In determining guardianship, the court will once again look to the best interests of the child. The test for all things pertaining to children is always, what is in the best interests of the children?

Who can apply for parenting?

Any guardian can apply for parenting time. You can be a parent and not be able to apply for parenting time because you are not a guardian. Parenting and guardianship go hand in hand as parenting involves making day-to-day decisions about the child. Without being a guardian, you have no authority to make major decisions about a child. 

The court always looks at the best interests of the children when making a parenting order.

Who can apply for contact?

Contact is the term used for court ordered time with a child by a non-guardian. Anyone who is not a guardian of a child can apply for contact with a child, however, in some cases you must first obtain the courts permission allowing you to ask for contact before the court will even consider contact time.  This is the case in most instances for a grandparent.

A person who is not a parent or a guardian of a child or who is not standing in the place of a parent of the child may only bring an application for contact with permission of the court on notice to the guardians of the child.

A grandparent may seek contact with a child without the permission of the court if the guardians of the child are:

  • Also the parents of the child;
  • Are living separate and apart or one of the guardians has died; and
  • The contact between the grandparents and the child has been interrupted by the separation or death.

In other words, the grandparent must show that time was being spent with the grandchild prior to the separation of the guardians or the death of one of the guardians, and that this time is no longer occurring.  Otherwise, the expectation is that the grandparent will have time with the grandchild during the same period of time that the child is having parenting time with the child’s parent. 

If these criteria are not met, then the grandparent will need to seek permission (or leave) of the court to bring an application for contact time.

When can my kids choose who to live with?

There is a false but prevalent public belief that when a child turns 12 he or she can choose which parent they wish to reside with. This is often called the “myth of 12”.  All children in Alberta are subject to the will of the court in terms of where they live until they reach the age of majority.  

The court takes great care to ensure that a child is not thrust into the middle of a parenting dispute and then left to decide between mother and father regarding where he or she prefers to primarily reside.  The court does not want a child to have to choose between parents.  However, the court will consider the wishes of a child where appropriate.  The older the child becomes the more strongly the court will consider the wishes of the child prior to making a decision.  This is commonly referred to the child “having a voice but not a choice”.

Notwithstanding the above, as a child gets older they often “vote with their feet”.  In other words, a child sometimes takes matters into his or her own hands and simply chooses to go where he or she feels most comfortable.  If a child is of a more mature age the court will sometimes choose not to get involved, knowing that any order will not be followed by the child in any event and could cause more problems.

What is a Practice Note 7?

A court has the power to order the parties to participate in short-term interventions, which are commonly referred to as a “Practice Note 7”.  Interventions are presided over by psychologists specifically trained in the area, who are referred to in this context as “parenting experts”.  

There are two types of PN7’s - evaluative and therapeutic.  

Evaluative Interventions focus on observing the family and the issues being raised and then reporting the findings and observations to the court.  

In Therapeutic Interventions the parenting expert works with individuals or combinations of family members in an effort to work toward resolution, manage conflict and make changes in the existing family dynamic.  Attempts are made to facilitate parenting agreements, revise existing parenting plans, address children’s needs or repair damaged parent-child relationships.  

Prior to ordering a PN7 the court must be satisfied that the parties have the economic resources necessary in order to cover the cost.  Where there is a shortage of funds the court is not allowed to make such an order.  The court will also set the maximum amount of time the Intervention is to take and make a ruling, at least in the first instance, on who will pay. These PN7 Interventions generally take between 10 and 30 hours and can be quite expensive.

What is an evaluative intervention?

Evaluative Interventions have the following sub-categories:

  • Triage:  this is a very general type of intervention where a parenting expert evaluates the family and then makes recommendations concerning the type of subsequent intervention that may best meet the particular needs of the family.  It is step one in a multi-step process.
  • Voice of the Child:  this is where the parenting expert determines the specific needs or, where appropriate, the wishes of the child.  Here the parenting expert will interview each parent separately.  The children are seen separate and apart from the parents and are usually seen twice, once after spending time with and being dropped off by each parent.  The parenting expert will then prepare a report for the court detailing their findings.
  • Parent Psychological Evaluation:  this is an examination by the parenting expert of whether there are any risk factors present that suggest a parent cannot adequately meet the needs of a child and recommendations of what supports are required to address these risks.

What is a therapeutic intervention?

In Therapeutic Interventions the parenting expert works with individuals or combinations of family members in an effort to work toward resolution, manage conflict and make changes in the existing family dynamic.  Attempts are made to facilitate parenting agreements, revise existing parenting plans, address children’s needs or repair damaged parent-child relationships.  The sub-categories are:

  • Educational Sessions: here the court may order that family members attend educational courses or sessions, including the Parenting After Separation High Conflict course and the Focus on Communication in Separation course in the hope it will assist parents to better understand the needs of their children, the roles of parents or other caregivers and the negative impacts on children of prolonged conflict.  It should be noted that all parents with children under the age of 16 are required to take the Parenting After Separation course.
  • Mediation: A mediator is appointed to assist the parties in resolving parenting issues, or the parties are directed to attend the Family Justice Mediation program. This Intervention can only be ordered with the consent of both parents. The goal is to settle disputes and/or build a parenting plan. 
  • Therapeutic Intervention with One Parent:  This is geared toward changing the attitudes, beliefs and practices of an individual parent who is seen to be creating difficulties for the children through their actions or who is impeding the ability to reach resolution on parenting issues.
  • Therapeutic Intervention with Both Parents:  here the parenting expert attempts to resolve conflict, address parenting issues or disputes or build a parenting plan with the parents. The key difference between this form of intervention and mediation is that there is active teaching, modeling and guidance provided to the parents so that the emotional relationship between the parents can be addressed as much as the practical parenting issues. Therapeutic Interventions also serve to assist family members in the adjustment to changed circumstances and the restructuring of family roles.
  • Therapeutic Intervention with Child Only:  the key focus here is helping the child with adjustment issues pertaining to having a separated/divorced family. It can address difficulties in relationships with parents or other children, including siblings, difficulties learning, and difficulties with behaviour. 
  • Therapeutic Intervention with Parents and Children:  The purpose of a therapeutic intervention involving both parents and children is for the parenting expert to actively work with the family in an attempt to increase cooperation, facilitate a change in relationships, meet the emotional needs of family members and/or develop a parenting plan. Often, there are separate parenting expert(s) for the parents and for the child with all parenting experts given authority to confer with one another. 
  • Remedial Facilitated Access/Parent-Child Reunification:  This includes assisting a parent and a child to meet and become reacquainted when one parent has been out of a child’s life for a prolonged period of time.

What is a Practice Note 8?

Where there is significant conflict and/or a significant concern of whether or not a child’s well-being is at risk, a court may order a “Parenting Time/Parenting Responsibilities Assessment”, commonly referred to as a Practice Note 8.  

A PN8 is a comprehensive assessment of the nuclear family, done to assist the Court in determining parenting arrangements that are in the best interests of the children and within the capabilities of the family. This evaluates the parents’ ability to meet their children’s needs, as well as their personal and parenting strengths and vulnerabilities. It may also include assessments of any new partners, extended family members or other associates who play a significant role in parenting the children within the home. A PN8 involves a comprehensive evaluation of the children’s developmental needs, observation of parent/child interactions, and corroboration of reports and observations through collateral information sources. 

PN8’s are for use in a small minority of cases where the parties are experiencing an impasse, an assessment for the court is required and the court requires assistance from a parenting expert.  PN8’s are conducted by specially trained psychologists and are typically extremely expensive given the intensive and exhaustive nature of the assessment.  As with a PN7, PN8’s cannot be ordered by the court unless the court is satisfied that there a sufficient financial means to cover the cost.  The cost is often in the $15,000 to $30,000 range.

On completion of a PN8 a comprehensive report is prepared and sent to the court.  Neither party is entitled to have a copy of the report.  Rather, each party is restricted to reviewing the report with their respective counsel at their respective counsel's office and the party cannot make a copy or take notes.  If you are self-represented you are entitled to review the report at the courthouse. Typically, the parenting expert will include a summary of his or her findings along with recommendations for parenting time.  Each party is usually allowed to receive a copy of the recommendations.

Can I deny parenting time if I am not receiving child support?

Courts are very careful to separate their analysis of child support from their analysis of parenting. Where one party is not paying child support or, where one party is withholding the children, this does not trigger a right for the other party to choose to either withhold the children or not pay support.   

As noted, courts view child support and parenting as two separate and distinct issues and they heavily frown upon one party choosing to withhold a child from the other parent in retribution for the non-payment of child support, or vice versa.  Particularly where there is a court order in place, you should continue to meet your obligations under the order or risk being in breach of the order or contempt of court.

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