One of the most challenging matters to address in divorce settlements is what happens to the children of the marriage.
Child custody laws in Alberta provide equal rights to both parents but it is the right of the child to live in a safe and nurturing environment. If the matter goes to court, the best interests of the child are paramount in all such cases.
But how much weight is given to the child’s opinion in these matters? If the child expresses a preference for living with one parent over the other, will that be taken into account when the court decides?
Let us find out.
What are the child custody laws in Alberta?
Divorcing parents in Alberta must either agree on parenting arrangements through discussion or mediation or have the court decide on custody, visitation, and access matters as per the Canadian Divorce Act.
For unmarried parents (who are not covered by the federal Divorce Act), Alberta’s Family Law Act provides legal guidelines.
In all cases, the primary consideration is the best interests of the children. In other words, decisions should be made that protect the child’s physical, emotional, and psychological safety, security, and well-being.
At what age can a child choose which parent to live with in Alberta?
Typically, an adult must decide where a child lives after a divorce or separation in Alberta. That said, a child who is mature enough may certainly have a say in the matter—though there is no set age at which a child can choose which parent to live with.
If the court decides on the living arrangements of a child, that child’s preferences and opinions may be taken into account as one of many factors that will affect the decision. Other factors include the ability of the parents to provide a safe and nurturing environment, the age of the child, any special needs, and the past care history of the child—more about these factors below.
How much weight will be given to the opinions of a child when deciding on living arrangements will depend largely on the maturity of the child in question. The more mature the child, the more weight will be given to opinions that he/she expresses—with teenage children generally considered mature enough to express a meaningful opinion.
However, because there is no set age limit as which a child is considered “mature,” we must consider case history for guidance on this:
- In Albers v Albers (2011) ABQB 456, the court held that the wishes of a 12-year-old child should “definitely be considered” but the child’s wishes should not “predominate over all other factors”.
- In RM v JS (2013) ABCA 441, the court took into account a 10-year-old child’s wishes.
It should be noted that once an individual turns 18 in Alberta, the child is legally an adult with the right to decide where they live. Even before this age, the court wants to avoid the possibility of a teenage child running away from home and so will generally take their wishes into account.
How can a child express an opinion on custody?
The Alberta family court system tries to shield children from the potential trauma of being involved in divorce proceedings, appearing in court, or speaking to a judge.
Consequently, parents providing the opinions of children as evidence in custody cases is strongly discouraged and may be viewed disapprovingly by the court. Judges are aware that children often tell their parents what they think they want to hear.
If the court requires the opinions of a child, the information may be obtained by court order in one of two ways:
- A Voice of the Child Assessment conducted by a professional experienced in questioning children, e.g., a psychiatrist or child psychologist. A report is submitted to the court after the professional has met with the child and both parents separately.
- An independent lawyer acting on behalf of the child—either according to the child’s instructions or (if the child cannot instruct the lawyer) as per the child’s best interests.
The court will decide which method to use to obtain the child’s opinion, depending on the prevailing time restraints, costs, and personal circumstances of all parties involved.
The child’s opinion will be considered by the judge as mentioned—but other factors are involved in making the final decision.
What factors are considered when placing a child with a parent?
When the court places a child with a parent after a separation or divorce in Alberta, a wide variety of factors are taken into account in the hope that the final decision is the best possible arrangement for the child. The main factors are:
- The age and health of the child
- The child’s physical, emotional, and psychological needs
- The ability of each parent to meet the child’s needs by providing a nurturing environment with access to appropriate education, medical care, emotional support, etc.
- The child’s relationship with each parent
- Previous parenting arrangements (arrangements that promote stability, continuity, and normalcy for the child are preferred)
- Any history of neglect, substance abuse or domestic violence from either parent
- The child’s stated preferences
- The child’s cultural and religious background
- The child’s educational and social needs
- The child’s extended family relationships, such as with grandparents, aunts, uncles, and cousins
- The potential impact of separation on the child’s daily routine, emotional health, and overall development.
- The willingness of each parent to cooperate in the best interests of the child
Whether your child custody case ends up in the Alberta courts or not, the assistance of a child custody lawyer can help guide you toward making better decisions when determining where your child lives after a separation.
If your case does go to court, judges in Alberta are given considerable latitude and consider many factors when making custody decisions. An experienced child custody lawyer can help a parent present a convincing case.
Contact Jennings Family Law Today
If you live in the Calgary area and need assistance with any matters concerning child custody, the experienced lawyers at Jennings Family Law can help you. Call (403) 316-0138 to request a confidential consultation, contact us directly online, or email Warren Jennings directly at warren@jenningsfamilylaw.com.