If you and your partner or spouse are going through a separation or divorce in Calgary and you have children together, you will likely hear the term “best interests of the child” frequently. It is the guiding principle for all court decisions that affect children in Alberta.
What does “best interest of the child” mean, and how will it affect the decisions that you and your partner make when discussing parenting, decision-making responsibilities and parenting time (formerly “custody” and “access”) in Calgary?
Ultimately, it means that the child’s well-being, upbringing, and development are prioritized by the Alberta family law system over the preferences or wishes of the parents. Most times, the parents also want the best for their children, but they may not agree on the arrangements to accomplish that.
If parents cannot agree on the best interests of their children, the court may need to intervene. In deciding, judges will consider many factors.
Factors determining a child’s best interests for Alberta courts
Courts seek decision-making responsibilities and parenting time arrangements that best support the child’s physical, emotional, and psychological needs.
The most important considerations are continuity of care and a stable, nurturing environment. The courts will evaluate whether a proposed arrangement will provide these essential elements, which are seen as best serving the child’s development and well-being. Abrupt transitions to new arrangements are generally discouraged unless the child’s safety is at risk.
The following are the most important factors considered by judges when making child support decisions in Alberta:
- The child’s physical, psychological, and emotional needs, including the need for stability
- The child’s care history
- The child’s cultural, linguistic, religious, and spiritual upbringing and heritage
- The child’s opinions and preferences (if of a mature enough age)
- The relationships between the child and those living with him/her or significant in his/her life
- The parents’ ability and willingness to care for the child’s needs and communicate and cooperate in the child’s upbringing
- Parental ability and willingness to act fully as guardians
- Any history of family violence
- Any other legal proceedings relevant to the child’s safety or well-being
Ideally, the child’s best interests are balanced with the ability of each parent to fulfill their duties to raise the child. The courts prefer decision-making responsibility arrangements where the parents are cooperative and support each other in carrying out their parental roles—rather than exposing the child to conflict.
Sometimes, courts seek assistance from psychologists, social workers, and child welfare experts to assess the child’s needs, the family dynamics, and the best possible arrangement for the child.
Does a child’s age affect decision-making responsibilities in Alberta?
The age of the child(ren) usually plays a significant role in child decision-making responsibilities in Alberta. Children’s needs change as they get older. Generally speaking, the younger the children, the more they rely on the parents—and the more mature they are, the more say they have in the decision-making responsibility decision.
For infants and toddlers, the courts seek a nurturing, safe, and stable environment. For teenagers, more emphasis may be placed on well-being, social and educational development, and any stated preferences.
Is the father or mother favoured by courts in Alberta?
Times have changed. Mothers have no more right to decision-making responsibilities in Alberta than fathers do and the courts cannot favour either parent based on gender alone. The focus needs to be on how the best interests of the child can be met physically, emotionally, and psychologically.
Typically, in Alberta, the standard preference of the court is for the child to spend approximately equal time with both parents. A close bond with both parents is generally considered the best environment in which children can be nurtured, protected, and developed.
Shared responsibilities for decision-making and visitation for the non-custodial parent are strongly encouraged—as is collaboration between parents when raising their child. This applies unless there are good reasons not to, such as if one parent has a history of domestic violence.
Sole custody vs joint custody in Calgary
Sole custody
(now known as sole decision-making responsibility) means that one parent is granted exclusive physical and legal responsibility for the child, providing a place to live and making all important decisions about the child’s upbringing, education, health care, etc. No consent is necessary from the non-custodial parent, who nevertheless generally retains parental rights and is encouraged to see the child.
Joint custody
(now known as joint decision-making responsibility) allows both parents to take an active role in their children’s lives, spending approximately equal time together and making joint decisions on all the key matters. An exact 50/50 split of time is rarely practical but a parenting plan that includes regular time spent between the child and each parent will normally satisfy the courts.
Shared or joint decision-making responsibility arrangements are far more common in Alberta than sole decision-making responsibility —for the reasons already stated.
What if a child wants to relocate with a parent in Alberta?
If a child and parent want to relocate to another city, province or country, this can greatly affect a joint decision-making responsibility situation, creating many challenges for all concerned—including the courts.
If joint decision-making responsibility parents do not agree about the relocation, the matter can be very delicate—and there are strict rules for custodial parents to follow if they intend to move with a child. There must be a compelling reason to move and adequate notice must be provided.
The primary legal focus remains the best interests of the child. If the relocation includes education or social benefits for the child and financial advantages, it may be more justifiable than if a parent wants to move with the child simply due to personal preferences—especially if the non-relocating parent objects to the move.
If the relocation is approved by the court, new decision-making responsibility and parenting time arrangements may be ordered by the court to accommodate the change.
How important are the child’s preferences in Alberta decision-making responsibility decisions?
If the child wants to relocate with the parent—or states a preference for any other decision-making responsibility decision—the maturity of the child is the key factor in how much weight is given to the opinions.
Alberta courts will generally recognize that older children and teenagers may have well-formed opinions about their preferred living arrangements and parental relationships—and these will be given considerable weight.
However, it is also recognized that adults are best-positioned to know what’s best for minors—and that younger, less mature children are open to considerable influence and bias from parents.
Generally, the Alberta courts protect children from the stress of court hearings. To hear their opinion, a qualified family lawyer or a specialist Family Court Interviewer may conduct a private interview.
How important are parenting plans in decision-making responsibility cases?
Parenting plans are detailed documents that outline how parents will collaborate to meet the best interests of their children after they separate. They often provide the basis for decision-making responsibility arrangements after a divorce, outlining each parent’s specific responsibilities.
Parenting plans are favoured by the Alberta courts because they usually result in better outcomes for the children. If a coherent and acceptable parenting plan is not presented, however, a judge may order mediation to attempt to resolve outstanding parenting matters or intervene to decide on these matters in the best interests of the children.
A comprehensive parenting plan should include at least the following:
- Living arrangements for the children
- Division of time between the parents
- Detailed visitation schedules
- Decision-making responsibilities such as education, healthcare, religion, and extracurricular activities
- Methods for handling emergencies
- Methods for resolving disputes, e.g., mediation
If you live in the Calgary area and need assistance with any matters concerning child decision-making responsibilities, the experienced lawyers at Jennings Family Law can help you. Call us directly at (403) 316-0138 or book a case evaluation to discuss your situation.
