Figuring out what’s best for your child after a separation or divorce can be complex and confusing. This post will give you clarity on what Alberta law says about child custody and parenting, and give you some tips on creating a parenting plan that’s in your child’s best interests.

Parenting Laws in Alberta

The Divorce Act and the Family Law Act are the laws that govern child custody and parenting in Alberta, but there are some differences between them and they apply to different situations.

The Divorce Act is Canadian federal law that applies only to divorced couples or married couples who have separated and are pursuing a divorce. It addresses custody, parenting arrangements, and spousal support.

The Family Law Act is Alberta provincial law, and it applies to both married and unmarried people. It addresses child support, contact, access, guardianship, and parenting. If you have not filed for divorce in Canada, this Act is the one to refer to regarding parenting and contact issues.

Definitions of Legal Terms About Parenting

What’s the difference between a parent and guardian? What’s the difference between custody and access? What does contact mean in family law? There’s a lot of terminology surrounding custody and parenting in Alberta. Here are some simple definitions to help clarify the meaning of it all.

These terms describe the various relationships that parents, and sometimes other people, have with their child. In Alberta, anyone under the age of 18 years is a child.

Guardianship

In the Family Law Act, guardianship essentially refers to the authority to make decisions for or on behalf of the child. It refers to the guardian’s rights, responsibilities, and powers regarding the child.

Both parents are guardians of the child if:

• They were married to each other when the child was born
• They were married to each other, but divorced less than 300 days before the child’s birth
• They lived together for at least one year and the child was born while they were living together
• They lived together for less than one year, but were in an adult interdependent relationship, and the child was born during that relationship
• They married or became adult interdependent partners after the child’s birth and within one year of finding out about the pregnancy or birth of the child
• They signed an agreement that they’d both be guardians

If the parents are not married or living together, a parent is the guardian of the child if that parent shows an intention to assume the responsibility of guardianship within one year of finding out about the pregnancy or the child’s birth.

A guardian is responsible for the child’s physical, psychological, and emotional needs and development, including ensuring the child has food, clothing, shelter, and medical care. A guardian is entitled to receive and respond to any legal notice, health information, or educational information regarding the child, and has the power to provide legal consent on matters pertaining to the child that require it.

Guardianship is largely about decision-making. A guardian can make day-to-day decisions about the child, including the child’s:

• Living arrangements, such as where and with whom the child lives and associates
• Education
• Extracurricular activities
• Cultural, linguistic, religious, and spiritual upbringing
• Work

Custody

Custody relates to both the legal relationship and the physical or practical relationship between a guardian and the child. The legal aspect is the rights and responsibilities of guardianship. The physical or practical aspect is the right and responsibility to provide for and manage the physical needs and daily care of the child.

Legal custody and practical custody don’t need to be given to the same person. A parent or guardian can have legal custody—the right to be involved in decisions about the child—without having physical custody.

There are four main types of custody arrangements in Alberta.

1. Sole Custody

Sole custody, also called “full custody”, is the least common child custody arrangement in Alberta. It’s when one parent is solely responsible for the care of and decision-making for the child.

2. Shared Custody

Shared custody, also called “joint physical custody”, is when both parents share custody of the child. In this arrangement, each parent must spend at least 40% of their time with the child.

3. Joint Custody

Joint custody, also called “joint legal custody”, gives both parents the right to make decisions for the child. This type of custody arrangement works best with parents who can cooperate.

4. Split Custody

Split custody happens when one parent has custody of one or more children and the other parent has custody of one or more children.

Access

In the Divorce Act, access refers to time a guardian spends with the child. Even if one parent has sole custody of the child, the other parent has some form of access unless the child’s safety is at risk.

An access parent does not have guardianship rights and may only make day-to-day decisions for the child (like what to eat or what activities to do) when the child is in their care. An access parent may only be involved in bigger decisions like education or medical care if they are in a joint custody arrangement.

There are various types of access:

• Reasonable—Access is flexible, and parents can decide on a schedule together
• Conditional—There are restrictions on the parent’s access, such as prohibiting drug or alcohol use during an access visit
• Supervised—Used in extreme cases when access visits must be supervised by someone else
• Specified—A structured access agreement or order with scheduled days and times

Contact

Contact refers to time spent with a child by someone who is not a guardian. That time can be in person, or by phone, mail, or email. A person with contact does not have authority to make decisions for the child.

Parenting

In the Family Law Act, parenting refers to guardians who don’t live together but share guardianship of the child and can cooperate. Some guardians choose to create a parenting agreement or parenting plan, which is a contract that defines access, decision-making processes, and where the child will live.

When the guardians can’t agree, they can go to court where the judge will make a decision called a Parenting Order.

How Does A Judge In Alberta Decide On Parenting?

It’s ideal for parents or guardians to make parenting decisions themselves, but sometimes they can’t agree. When the decision is brought to court, the judge must protect the child’s physical, psychological, and emotional safety, and decide what’s in the best interests of the child.

A judge looks at many factors to determine what’s best for the child, including:

• The age and developmental stage of the child
• Who the primary caregiver has been until now
• The child’s cultural, religious, and linguistic heritage
• The child’s preferences
• The plans each parent or guardian has for the future care of the child
• Any history of family violence, criminal charges, or convictions
• The child’s relationships with each parent, guardian, and others in the child’s household and life, and the benefit to the child of maintaining those relationships
• The parenting ability of each guardian
• The parent’s or guardian’s schedules
• How cooperative each parent or guardian is in communicating with the other
• What each parent or guardian wants to happen

Create a Parenting Plan

Canadian and Alberta courts prefer parents to work together to agree on custody arrangements and parenting plans. If it’s too difficult for the parents to manage on their own, they should involve a lawyer or family mediation services before opting to go to court.

This is because the courts recognize that parents know their child best. A court attempts to make a decision that’s in the child’s best interests, but the court only knows the information that’s presented, which might not give an accurate picture of the true nature of the relationships involved. Also, taking a child custody decision to court can take a huge financial and emotional toll on the family.

Ideally, parents can agree to a parenting plan that covers details about:

• Living arrangements
• Decision-making
• Access schedules
• Contact time
• Communication between the child and parent when they’re not together
• A plan for holidays, vacations, weekends, etc.
• A summary of each parent’s responsibilities to the child
• A plan for resolving disagreements

The family lawyers at Getz Collins and Associates specialize in family law and assisting parents with creating a parenting plan. Contact us today for help with any guardianship, custody, access, contact, and parenting plan issue. We can advise you of your rights and the best course of action to protect your child’s best interests.