During a divorce, parents must decide how to arrange a parenting plan. For many, it can be challenging to co-parent effectively, including finding a schedule that works for the parents and the child. While parties can mutually agree on and enter into a consent order for parenting arrangements, others may need to ask the court to intervene if they cannot agree. The court will consider the child’s best interests as the primary factor for determining parenting time. Even after a parenting order is made, changes in the child’s circumstances may warrant a variation of an existing parenting time order, which may be agreed upon between the parties or require judicial intervention.

This blog will explore the factors considered when contemplating a parenting time order, including a discussion on how the court would analyze the child’s best interests. It will also identify the requirements to meet to vary a parenting time order if circumstances have changed and will provide key takeaways for parties seeking to vary a parenting time order. These principles will be illustrated by a recent case from the Alberta Court of Justice, in which the Court varied a parenting order to increase time for the father. 

What Factors Are Considered for a Parenting Time Order?

Before issuing a parenting time order, the primary consideration for the parties and the court is the best interests of the child. In the legal context, this principle has a very particular set of factors that should be considered, although the relevant factors may differ depending on the circumstances of the case.

According to section 18 of the Alberta Family Law Act, the best interests of the child involve the following:

1. Ensuring that the child’s physical, psychological, and emotional safety are protected to the greatest extent possible;
2. Considering the child’s needs and circumstances, including:
   1. The child’s physical, psychological, and emotional needs; 
   2. The child’s need for stability, given their age and developmental stage;
   3. The child’s history of care (i.e. who had primarily taken care of the child in the past);
   4. The child’s cultural, linguistic, religious, and spiritual upbringing and heritage; 
   5. The child’s views and preferences, if appropriate (typically based on the child’s age and maturity); 
   6. Proposed plans for the child’s care and upbringing;
   7. Any family violence, including its impact on:
      1. the child’s safety, or the safety of other family and household members; 
      2. the child’s well-being, 
      3. The ability of the person who engaged in family violence to care for and meet the child’s needs; 
      4. The appropriateness of making an order that requires the parents to cooperate on issues concerning the child;
   8. The nature, strength, and stability of the relationship between the child and:
      1. Each person residing in the child’s household, or any other significant person in the child’s life; 
      2. Each person subject to the contemplated order; 
   9. The ability and willingness of each person affected by the order to:
      1. Care for and meet the child’s needs; 
      2. Communicate and cooperate on issues concerning the child; 
   10. The potential benefit of the child developing and maintaining meaningful relationships with each parent or guardian;
   11. The ability and willingness of each parent or guardian to exercise the responsibilities of a guardian; 
   12. Any civil or criminal proceedings that may affect the child’s safety and well-being.

Overall, the court must consider a wide range of factors to determine the child’s best interests, which largely depends on the case’s specifics.

What are the Requirements to Vary a Parenting Time Order?

If a parenting order already exists, parties can still seek a variation. However, certain requirements must be met for the court to vary a parenting time order.

A variation of a parenting order is set out in section 34 of the Family Law Act. The court can make an order to vary, suspend, or terminate a parenting order or any part of that order. In order to make a variation order, the court needs to make sure that there has been a change in the child’s needs or circumstances since the original parenting order was made or the last variation order. 

Notably, to make the variation order, the court must only consider the child’s best interests as outlined above. Also, the court has emphasized that the child is the focus of the analysis. Even though the parties’ lives may have changed, which may have an impact on the child’s circumstances, it is the change in the needs or circumstances of the child that is relevant to the analysis.

Also, circumstances do not need to change if the order is an interim order rather than a final parenting order. 

Court Varies Parenting Order to Increase Time with Young Child’s Parent 

In the case of BC v JG, 2024 ABCJ 97, the father sought a variation to the existing parenting order in order to spend more weekends with the child. The father and mother did not have a long relationship and had the child not long after meeting each other. After the child was born, the parties were granted an interim parenting order, which the father claimed that he believed to be temporary as the mother intended to move to the United States and then return to Canada. Under this parenting order, the father was to spend every third weekend with the child.

At trial, the father sought an increase in parenting time with the child so that they would spend every other weekend with each other. The mother opposed this arrangement and alleged that the child was experiencing abuse under the father’s care.

Child’s Well-Being and Safety are Key Considerations 

The Court considered the child’s well-being and safety and found that there was no evidence that the child was being abused under the father’s care. The Court found the father’s request of alternating weekends to be reasonable, and it was in the child’s best interests to continue developing the bond with their father.

The Court determined that it was not necessary to find that there was a change in circumstances, as the existing order was an interim order rather than final parenting order. However, the Court concluded that a change in circumstances in this case was caused by the mother’s stopping to breastfeed the child, which could potentially allow for more time spent with the father.

Contact the Family Lawyers at Getz Collins and Associates for Assistance with Parenting Arrangements 

There are many different ways that parties may wish to arrange parenting time. However, any arrangement must consider the best interests of the child. At Getz Collins and Associates, our family lawyers work closely with clients across Calgary, Strathmore, and surrounding communities to help them assess their parenting plan options. We take time to listen to every client’s circumstances and needs and are dedicated to finding the best resolution for you and your children. To learn more about how we can assist you, contact us online or call us at (587) 391-5600 to speak with a member of our team.