Parenting: What Do the Alberta Courts Look For?

Parenting Through the Alberta Courts System

When thinking about your child’s future amidst a divorce, there are several ways to develop and execute a parenting plan that both parties can respect and follow. A parenting plan is a holistic view of your child’s life, including where they live, who makes decisions for them, and how they will be cared for. We have discussed on the blog several strategies for making a parenting plan work. Mediation can help develop a parenting plan, as well as make it legally binding. Parents may also choose to use collaborative law if they are represented by lawyers. It is strongly recommended that clients attempt to come to an agreement on parenting outside of the formal court process. This allows parties to have control over the situation and come up with creative solutions instead of having an Order imposed on them by a Justice or Judge. As well, attending court is expensive, and parents have less control over what the outcome will look like. In some cases, especially those that involve family violence, abduction or spousal intimidation, going to court can be the best solution.

What does the law say?

In Alberta, the best interest of the child is governed by the Family Law Act and is the primary criteria when determining parenting arrangements including parenting time and decision making authority. The Family Law Act sets out the obligations of the court when determining the best interests of the child which include:

•  ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and
•  consider all the child’s needs and circumstances, including
  • the child’s physical, psychological and emotional needs, including 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, to the extent that it is appropriate to ascertain them,
    • any plans proposed for the child’s care and upbringing, any family violence, including its impact on
      • the safety of the child and other family and household members,
      • the child’s general well‑being,
      • the ability of the person who engaged in the family violence to care for and meet the needs of the child, and
      • the appropriateness of making an order that would require the guardians to co‑operate on issues affecting the child,
  • the nature, strength and stability of the relationship
    • between the child and each person residing in the child’s household and any other significant person in the child’s life, and
    • between the child and each person in respect of whom an order under this Part would apply,
  •  the ability and willingness of each person in respect of whom an order under this Part would apply
    • to care for and meet the needs of the child, and
    • to communicate and co‑operate on issues affecting the child,
  •  taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian,
  • the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and
  • any civil or criminal proceedings that are relevant to the safety or well‑being of the child.

Best Interest Tests

The way the above interests are served are through a series of best interest tests. While it may seem unfair, children (especially young ones) are not often asked directly by the Justice or Judge what they would like from the situation. Instead, it is important that the parent listens to the children, and these intentions can be incorporated into the proposed parenting plan. Ultimately, it is an adult decision, and it’s important for a parent to present a clear plan of what they would like from the situation to their lawyer. If the Justice or  Judge deems it necessary, an external parenting expert may be hired to make assessments. This assessment could be conducted by a social worker, mental health specialist or psychologist.

Parents are Encouraged to Agree in Court

The Justice or Judge will assess the situation and present a solution that will work best for the children, but is not responsible for ruling what is right and wrong. Punishment and praise are not something that an applicant should seek in a parenting order. The Justice or Judge will not consider the past behaviour of a parent unless it impacts their ability to parent. That being said, the Justice or Judge will take in to consideration where a parent has been violent to their partner, child or any other child in their life.

Hiring a Lawyer

Having a lawyer on your side during the determination of parenting can help simplify the process. A lawyer can explain court procedures that seem opaque from the outside. They can also review documents, including parenting plans that have been decided outside of the court. If they do review a parenting plan, they can ensure the plan follows the law. Lawyers can represent you in court, including advising and applying for which order makes sense for your situation. A lawyer will work with you to create a plan that ensures the safety and happiness of your children. A lawyer can also identify what should be presented to the court, and make a concise argument.

Disclaimer: The content provided in the blog posts of Jones Divorce & Family Law is general information and should not be considered legal advice. Please contact a lawyer for legal advice tailored to your specific situation. All articles are current as of their original publication date.