Parenting Time After Separation in Calgary: Key Legal Considerations

In Alberta both are governed by one of two statutes, and which one applies depends on the proceeding a family is in rather than on whether the parents were married. Each Act has its own vocabulary for them, and which set of words applies follows from which Act the matter is under.

Under the Divorce Act, a court may make a parenting order providing for the exercise of parenting time and decision-making responsibility. Parenting time may be allocated by way of a schedule.

Unless the court orders otherwise, a person to whom parenting time is allocated has exclusive authority to make day-to-day decisions affecting the child during that time.

Decision-making responsibility, or any aspect of it, may be allocated to either spouse, to both, to a person other than a spouse who is a parent of the child or stands in the place of a parent, or to any combination of them.

That Act also gives an information entitlement, and it reaches past the people who hold parenting time or decision-making responsibility. Unless the court orders otherwise, a person to whom parenting time or decision-making responsibility has been allocated is entitled to request information about the child's well-being, including their health and education, from another person who holds parenting time or decision-making responsibility — or from any other person who is likely to have that information — and to be given it by those persons, subject to any applicable laws.

Under Alberta's Family Law Act, the framework is guardianship. A guardian exercises the powers, responsibilities and entitlements of guardianship in the best interests of the child. Where a child has more than one guardian, each may exercise them unless the court orders otherwise; each must give information to another guardian at that guardian's request; and they must use their best efforts to co-operate on issues affecting the child. A parenting order under that Act may allocate those powers and responsibilities among the guardians and may allocate parenting time, which is exclusive to that guardian subject to any limitations the court imposes.

How the Acts fit together. Alberta's jurisdiction to make or vary a guardianship order, parenting order or contact order continues unless and until a court makes an interim or final parenting order or contact order under the Divorce Act in divorce proceedings.

Under both Acts the best interests of the child are the only consideration, and both put safety first in their own words. The Divorce Act makes the child's physical, emotional and psychological safety, security and well-being the primary consideration when the court weighs its factors. Alberta's Act requires the court to ensure the greatest possible protection of the child's physical, psychological and emotional safety.

The factors group into a handful of subjects.

1. 1

   The child's needs, given their age and stage of development, including the need for stability.

2. 2

   The history of care of the child.

3. 3

   The child's views and preferences.

4. 4

   The nature and strength of the child's relationships with the people around them.

5. 5

   Each person's willingness to support the child's relationship with the other, and each person's ability and willingness to care for the child and to communicate and co-operate about them.

6. 6

   Any plans for the child's care.

7. 7

   The child's cultural, linguistic, religious and spiritual upbringing and heritage.

8. 8

   And any family violence, which each Act addresses with its own apparatus.

The two Acts set their factors out differently — different structures, different wording, different numbering — and which list applies depends on which Act the matter is under. They overlap in substance and they are not the same list stated twice.

On 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. Conduct that is not relevant in that way is outside what the court considers; conduct that is relevant is not excluded by that provision.

On how time is allocated, the Divorce Act directs the court to give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

And the rules above are not limited to a final order. Under the Divorce Act, the provision that sets out the best interests of the child applies to an interim parenting order and to a variation of one, and to an interim contact order, as it does to a final order — so an interim arrangement is decided on the same basis.

An arrangement that no longer works is changed by varying the order, not by departing from it.

Under the Divorce Act, a court of competent jurisdiction may make an order varying, rescinding or suspending a parenting order or any provision of one, retroactively or prospectively.

The application may be made by either or both former spouses, or by a person other than a former spouse who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent — and a person to whom the parenting order does not relate may apply only with leave of the court.

Before making that order the court must satisfy itself that there has been a change in the circumstances of the child since the order or the last variation of it.

The Act says three further things about that threshold. A former spouse's terminal illness or critical condition is to be considered a change in the child's circumstances, and the court is to make a variation order about the allocation of parenting time. The relocation of a child is deemed to be such a change. And a relocation that a court has prohibited does not, in itself, constitute one.

On a variation the court may include any provision that could have been included in the original order, and it has the same powers and obligations it would have had when making that order. The limit on past conduct carries across: the court is not to take into consideration any conduct that could not have been considered when the original order was made.

Under Alberta's Act, on application by one or more of the guardians the court may make an order varying, suspending or terminating a parenting order or any part of it. Before doing so the court must satisfy itself that a change in the needs or circumstances of the child has occurred since the order or the last variation, and in making the variation order it is to consider only the best interests of the child, as determined by reference to that change. It may include any provision that could have been included in the parenting order.

That Act also provides a second application route for one particular class of parenting order, under which an application may be made by the child or by a person who has the care and control of the child. Which orders fall into that class is a question for a lawyer.

The two thresholds are worded differently — a change in the circumstances of the child under the Divorce Act, a change in the needs or circumstances of the child under Alberta's Act — and each belongs to its own Act.

Moving with a child raises its own notice rules, which are set out in moving with a child after separation.

What happens when an order is not followed, and what a court can order about it, is covered in when a child refuses parenting time.