What Evidence Matters Most in a Child Custody Dispute?
Evidence in a parenting dispute needs to address the factors under the applicable Act. The Divorce Act makes the best interests of the child the only consideration for parenting and contact orders. Alberta's Family Law Act excludes proceedings about whether a parent is a guardian from its rule that the best interests of the child are the only consideration.
Evidence Matters Because a Factor Matters
The Divorce Act directs the court to take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order. Alberta's Family Law Act directs the court, in proceedings under its parenting Part other than proceedings about whether a parent is a guardian, to take into consideration only the best interests of the child.
The Factors, and What Bears on Each
The child's needs and the need for stability
Both Acts direct the court to the child's needs given their age and stage of development, including the need for stability. Anything that bears on what this child needs at this age falls here.
The history of care
Who has been doing what, and for how long. Both Acts put the history of the child's care among the factors.
The relationships around the child
The Divorce Act directs the court to the nature and strength of the child's relationship with each spouse, with siblings and grandparents, and with any other person who plays an important role in the child's life. Alberta's Act directs it to the child's relationships with each person residing in the household and with each person who would be affected by an order.
Ability and willingness to care, communicate and co-operate
Each person's ability and willingness to care for the child and to meet the child's needs, and each person's ability and willingness to communicate and co-operate with the others on matters affecting the child.
Supporting the child's relationship with the other parent
The Divorce Act directs the court to each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse.
The plans for the child's care
What each person proposes for the child's care, and how it would work.
Upbringing and heritage
The child's cultural, linguistic, religious and spiritual upbringing and heritage. The Divorce Act expressly includes Indigenous upbringing and heritage.
Proceedings and orders relevant to safety
Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
The Limit on Past Conduct
On a person's past conduct, the Divorce Act sets a prohibition with one exception. In determining what is in the best interests of the child, the court is not to take into consideration the past conduct of any person, unless that conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
So conduct that is not relevant in that way is outside what the court considers, and conduct that is relevant is not excluded by that provision. What the provision asks is a specific question about relevance to the exercise of parenting time, decision-making responsibility or contact under a contact order, and whether particular conduct meets it is about that conduct.
The same limit carries into an application to vary: on a variation the court is not to take into consideration any conduct that could not have been considered in making the order being varied.
Family Violence, and the Standard Alberta Sets for It
Family violence is a factor under both Acts, and each carries its own apparatus.
The Divorce Act directs the court, in considering the impact of any family violence, to take into account a list of matters: the nature, seriousness and frequency of the violence and when it occurred; whether there is a pattern of coercive and controlling behaviour; whether the violence is directed toward the child or the child is exposed to it; the physical, emotional and psychological harm or risk of harm to the child; any compromising of the safety of the child or another family member; whether the violence causes the child or another family member to fear for their own safety or that of another person; any steps taken by the person engaging in the violence to prevent further violence and improve their ability to care for the child; and any other relevant factor.
Alberta's Family Law Act carries its own definition, and the definition is not closed: it says family violence includes the behaviour it lists. It also states two exclusions. The use of force against a child by way of correction, by a guardian or a person with the care and control of the child, where the force does not exceed what is reasonable in the circumstances. And acts of self-protection or protection of another person.
That Act also sets a standard of proof for this factor. For the purpose of the family-violence factor in its list, the presence of family violence is to be established on a balance of probabilities.
The Two Lists Differ, So Which Act You Are Under Matters
Alberta's Act states the relationship between the two regimes: its jurisdiction to make or vary a guardianship order, a parenting order or a contact order continues unless and until a court makes an interim or final parenting order under the Divorce Act, or an interim or final contact order under that Act, in divorce proceedings.
Where one parent is asking to hold the decisions and most of the time, that is covered in sole decision-making and primary care ("full custody").
How a Lawyer Helps
A family lawyer can explain which Act your matter is under and which factor list applies, set out how the factors bear on your facts, and bring or respond to an application.
Where a matter is contested and the process itself is the difficulty, that is covered in contested and high-conflict divorce.
How parenting time, decision-making responsibility and guardianship fit together across the two Acts is set out in parenting, decision-making and child custody.
Why THEBIL Law
THEBIL Law is a family law firm in Calgary handling family law matters including parenting and child custody, divorce, family property, child support and spousal support.
Talk to THEBIL Law
Contact THEBIL Law to discuss your situation and the questions you want to address. The consultation request form can be submitted at any time, and the office makes contact to arrange a meeting.
THEBIL Law is at 5920 Macleod Trl SW Ste 720, Calgary, AB T2H 0K1, Canada. Call 403-457-3128.