Parenting Time For Children Under The Family Law Act
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For Non-Married Parents, Adult Interdependent Partners And Married Parents Not Seeking A Divorce
Contents
Parenting Orders & Parenting Time
The “Best Interests” Of The Child
Who Is A Parent?
A female person who gives birth to a child is presumed to be the biological mother of the child.
Although it is usually not a problem to identify the mother of the child, it may be more difficult to identify the father of the child.
A male person is presumed to be the biological father of a child if one of the following conditions is met:
- he was married to the mother of the child when the child was born;
- he was married to the mother of the child and the marriage ended less than 300 days before the birth of the child;
- he was married to the mother of the child after the birth of the child and has acknowledged that he is the father of the child;
- he cohabited with the mother of the child for 12 consecutive months during which time the child was born and he acknowledged that he is the father of the child;
- he cohabited with the mother of the child for at least 12 consecutive months and the cohabitation ended less than 300 days before the birth of the child.
- he is registered as the father of the child on the child’s birth certificate;
- a court has found him to be the father of the child for any purpose.
Who Is A Guardian?
Under the Family Law Act, the mother and the father are both presumed to be the guardians of the child if:
- they were married to each other when the child was born;
- they were married to each other and the marriage was ended by a decree of nullity of marriage or a judgement of divorce granted less than 300 days before the birth of the child;
- they married each other after the birth of the child;
- they lived together for 12 months during which time the child was born; or
- they lived in a relationship of adult interdependence when the child was born or after the birth of the child.
When the mother and the father of the child do not fall into the categories above, they are both the guardians of the child until the child acquires a usual residence with only one of them. At this time, the parent with whom the child has a usual residence will become the sole guardian of the child. A mother or a father who is not a guardian can apply to the Court to be appointed as a guardian.
Guardians are each responsible for making all significant decisions affecting the child and have a right to sufficient time with the child. Guardians have a duty to cooperate with each other in matters that affect the child. If guardians cannot agree, they can apply to Court for a parenting order.
Parenting Orders & Parenting Time
When a child has 2 or more guardians who live apart, the guardians often need assistance to cooperate in raising the child. It is always best if the parents are able to reach some friendly agreement. However, where an agreement is not possible, the Court will issue a parenting order, taking into account the “best interests” of the child.
Parenting orders replace custody and access orders for non-married partners, adult interdependent partners, and married parents who are not seeking divorce. In most cases, parenting orders encourage both parents to be involved with the child. The parenting order sets out how decisions about the child are to be made and how and when the child’s time is shared between the parents. This is called parenting time.
Each parent is presumed to have equal rights to parenting time. This means that each parent has equal obligations and responsibilities for the care and upbringing of the child. This may be changed by written agreement between the parties or by a parenting order.
1. Parental Responsibilities
A parenting order will help separated parents share their responsibilities and define their parenting plan in the “best interests” of the child.
Parental responsibilities include, but are not limited to, a duty to:
- Provide day-to-day care and control of the child (food, shelter and clothing).
- Supervise the child’s daily activities.
- Meet the required ordinary health, education and welfare needs of the child.
2. Types of Parenting Time
Parenting time set out by a parenting order may range from no or little intervention to the most significant intervention.
In the past, there was a strong presumption in the Courts that a mother should receive exclusive parenting time for any children of the marriage, especially if they were young children (under 7 years of age) or if they were girls. However, this is no longer the case. The Court now tends to look at the situation of each parent equally.
The most significant intervention would mean that one parent is granted exclusive guardianship and parenting powers and the other parent is no longer informed about the child and no longer has contact with the child. The child would reside with one parent who would make all of the decisions for the child. This type of situation is very rare.
The average intervention would mean that the child primarily resides with one parent and the day-to-day decision making is made by that parent. The other parent will have reasonable and generous visitation with the child. Both parents have an equal say in major decisions regarding the child, such as medical treatment, education, and religious decisions.
The smallest intervention would mean that each parent has equal parenting time, meaning the child spends an equal amount of time with each parent and all decisions regarding the child are equally shared. This works best when both parents remain on good terms and can discuss matters concerning the child in a reasonable way.
The primary consideration in awarding parenting time is the “best interests” of the child. The Court may also impose conditions or restrictions on any parenting order. An example of this would be where a Court granted exclusive guardianship to one parent on the condition that he or she attend counselling. It is also important to note that a parenting order may be reviewed by a Court and varied if a change in circumstances is shown.
3. When Parents Disagree
As long as there is no court order to the contrary, parental rights and responsibilities are to be exercised jointly by the mother and father who are both guardians. It is assumed that the two parents will reach an agreement on major decisions affecting their child. Until there is a parenting order, neither parent has the right to deny the other parent the right to see the child.
The “Best Interests” Of The Child
The Court will want to ensure the greatest possible protection of the child’s physical, psychological and emotional safety.
The court may consider all of the child’s needs when making a parenting order, including, but not limited to:
- The child’s need for stability, taking into consideration the child’s age and stage of development.
- The history of care for the child.
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage.
- The child’s views and preferences.
- Any plans proposed for the child’s care and upbringing.
- Any family violence.
- The nature of the relationship between the child and the person applying for the parenting order.
- The ability and willingness of the person applying for the parenting order to care for and meet the needs of the child and to communicate and co-operate on issues affecting the child.
- The views of the child’s current guardians.
- Any civil or criminal proceedings that are relevant to the safety or well-being of the child.
In awarding parenting time, the most important consideration to the Court is the “best interests” of the child.
Contact Orders
When a non-parent or non-guardian, such as a grandparent, wants to have time with the child they may apply to the Court for a contact order. However, it is always better to arrange contact with the child by reaching an agreement with the child’s parents or guardians.
A person who wants a contact order must first ask the Court for leave (permission) to apply for such an order. One exception is if the parents are separated or one parent is dead. In this case, a grandparent who has been denied contact with the child can apply for a contact order without asking for leave.
A contact order may include visits, telephone calls, emails and letters.
Court Orders
1. Getting a Court Order
There are two ways of obtaining a parenting order:
- Through the Provincial Court (Family Court) under the Family Law Act.
- Through the Court of Queen’s Bench under the Family Law Act.
Although both Courts use the same application forms and similar application procedures, parties cannot apply to both on the same matter. Usually Provincial Court is less formal.
For most applications there is no filing fee.
2. Parenting Orders Obtained in Provincial Court
Parents making an application for a parenting order in Family Court do not need to be represented by a lawyer. This means that costs can be quite low. However, if parenting time issues are to be decided at a trial, it may be wise to obtain the services of a lawyer. Before a parenting order may be issued by a Family Court Judge, the parents must be living apart and there must be a dispute about the parenting time of a child.
To apply for a parenting order in Family Court the applicant should telephone Family Court Services at 427-8343 to make an appointment with a Family Court Counsellor. These counsellors are attached to the Court and will be able to give assistance on all matters relating to the parenting order application free of charge.
At the first hearing the Judge can either make a permanent or an interim order for parenting time depending upon the circumstances. If at the initial hearing both parties ask the Judge for parenting time with the child, the Judge will not make a decision right away. Instead, the Judge will adjourn the matter to another date so a trial can be held. The Judge may have a Family Court Counsellor carry out a homestudy investigation. The Judge may decide at the initial hearing who will have parenting time with the child until the date of the trial. In exceptional circumstances, such as where there is a fear of a child being kidnapped by the other parent, the Family Court may grant an ex parte interim parenting order (an order that does not require the other parent to be present) which will last until the first court hearing. In order to obtain this sort of order, speak to the Family Court Counsellor.
At the trial, the parties will present evidence under oath. Each party may bring any witnesses that they feel should testify on their behalf. The Family Court Counsellor will also present evidence based upon the investigation report. After hearing all the evidence, the Judge will make his or her decision.
As in all custody cases, the Judge will be basing his or her decision upon what is in the “best interests” of the children.
3. Parenting Orders Obtained in The Court of Queen’s Bench
Parents making an application for a parenting order in the Court of Queen’s Bench should, but do not have to be represented by a lawyer. The first step will be to obtain an interim parenting order. This is decided upon the basis of a form-based statement which is presented to a Court of Queen’s Bench Justice in Chambers. The other parent may file a statement in response. After the Justice has looked at the statements, he or she will decide what is in the “best interests” of the child. If you live in Alberta, before bringing on such an application you must first attend the Parenting After Separation (PAS) seminar. In Edmonton, call 413-9805 to register. This is a free seminar.
In the Judicial District of Edmonton, parents are often referred by their lawyers to Family Mediation Services. A mediator is assigned to the case and his or her job is to sit down with the two parents and attempt to assist them to reach an agreement on parenting time. Call 427-8329 for more information. This is a free service.
If an agreement cannot be reached in mediation, the parents may also get an open or bilateral parenting assessment. The parents choose a psychologist, psychiatrist or social worker from a list provided to prepare the assessment. Such assessments are either ordered by the Courts or agreed upon by the parties.
The person chosen by the parents is assigned to do a custody assessment. This person will usually meet with both parents, the child involved, and any other person that may have relevant information on the issue. The professional will then provide a report to each of the parent’s lawyers containing his or her recommendation as to what is in the “best interests” of the child. If the parents are still unable to reach an agreement, the matter will be decided by a Justice after hearing evidence at a trial.
The open assessment is not free and each parent must pay half of the total cost of the assessment. The total cost of the assessment can be as high as $10,000 for each party. In certain circumstances the assessment may cost more than this. In cases of financial need, a subsidy for the cost of the open assessment is available by making an application to the Family Court Services. Call 427-8343 for more information.
It should be noted that parenting time disputes can be extremely expensive to litigate.
4. Appeals
Parents who are unhappy with the decisions made regarding the parenting time of the child may appeal. If the original order was made in Provincial Court, it may be appealed to the Court of Queen’s Bench within 30 days of the order. If the order is made by a Justice in the Court of Queen’s Bench, the order may be appealed to the Court of Appeal within 30 days of the order.
5. Varying the Parenting Order
A parenting order is never permanent. A Court always has the authority to change the order later, if there are any changes in the needs or circumstances of the child. The Court of Queen’s Bench may change an order originally made by a Provincial Court Judge or a Court of Queen’s Bench Justice. However, a Provincial Court Judge may only change an order originally made by a Provincial Court Judge.
In varying a parenting order, the Court considers whether there has been any material change in the condition, means, needs and other circumstances since the making of the original order. For example, an order may be varied if the following circumstances exist:
- remarriage by one of the parents
- alcohol or drug abuse
- refusal to obey the terms of the original parenting order.
This list is not exhaustive. Ultimately the Court will decide in the “best interests” of the child.
6. Problems with Orders
A parent who has reason to believe there is a serious risk to the child’s safety and well-being can apply to the Court to have an existing order reviewed.
If a parent is having problems seeing their child despite having a court order giving them parenting time, they should contact a lawyer who would be better able to assist them in enforcing their rights.
7. Enforcing Time with a Child
Once the Court hands down a parenting order, the order is legally binding and enforceable throughout Alberta. The validity of such orders outside of Alberta depends on whether other provinces in Canada have a statute similar to the Extra-Provincial Enforcement of Custody Orders Act. In Alberta, custody orders made in other provinces may be enforced in Alberta if a certified copy is registered here. To enforce an extra-provincial custody order parents will likely require a lawyer.
When enforcing time with a child, the court may order:
- appropriate compensatory time with the child
- the applicant be reimbursed for the necessary expenses incurred as a result of denying time with the child
- the respondent to give security to be held until parenting order obligations are fulfilled
- payment of a penalty of up to $100 per day to a maximum of $5,000 for denying time
- the respondent serve time in prison for up to 90 days for denying time.
If the parenting order has a police enforcement clause, the police or RCMP will help enforce the parenting order. A parent should take the order to the police before asking for their help. The police will take reasonable steps to find the child and uphold the rights of parents to spend time with their child. If the child is outside Alberta, the local police will contact the appropriate Law Enforcement Agency in the area where the child is located. If you want to ensure that you will be able to obtain assistance from the police, you should ask the Court to consider granting a police enforcement clause as part of the order granted. You should contact a lawyer in the event your child is abducted by your spouse.
8. Abduction or “Child Snatching” Where No Parenting Order Exists
A parent of a child who is under 14 years old may be charged with “child snatching” under s. 283(1) of the Criminal Code if that person removes the child from the other parent without permission. If a person charged with abduction or “child snatching” is found guilty, they may face imprisonment for up to 10 years. Therefore, if a parenting order is not in place, a parent should not take their child from the home without letting the other parent know where the child will be.
A parent who is separating from his or her partner who takes the child when leaving the home should begin an action for a parenting order as soon as possible.
Frequently Asked Questions
1. Where do I find a lawyer?
- Lawyer Referral Service - 1 (800) 661-1095
- Legal Aid Society of Alberta - 780-427-7575
2. What are my options if I do not want to go to court?
There are different services available to help you resolve a family conflict and come to an agreement without going to court. The most common way is through mediation programs run by the Courts, Family Court Counsellors, lawyers or Legal Aid.
Family Justice Services
Family Court Services - 780-427-8343
Mediation Services - 780-427-8329
3. What is the Parenting After Separation (PAS) course?
The Parenting After Separation (PAS) course is a free 6 hour course that is mandatory for people who live in Alberta and are applying for a parenting, custody or access order in the Court of Queen’s Bench. In Edmonton, call 413-9805 to register.
4. Is my existing order for custody and access still valid?
The Family Law Act does not change any order made by a court prior to October 1, 2005, but these orders are enforced using the Family Law Act.
5. Where do I find more information?
Family Law Information Centres - 780-415-0404
www.albertacourts.ab.ca/familylaw/
