Absent any extenuating circumstances that would negatively impact the child, child custody generally involves shared decision-making responsibility in Alberta.
This means that both parents have the right to make significant decisions that affect the child’s upbringing and well-being.
As with all custody decisions in Alberta, the “child’s best interests” is the guiding principle. Many factors are considered by the courts when determining shared decision-making responsibilities if the parents cannot agree between them.
These and other key aspects of this important topic are outlined below.
Decision-making responsibility in Alberta
Decision-making responsibility is sometimes referred to as “legal custody” but this term is not used in Alberta family law. The alternative term is considered more conducive to shared parenting arrangements that are best for the child’s well-being and care.
When couples divorce or end a common-law relationship with children, the welfare of the children is paramount. When parents no longer live together, decision-making can become contentious and lead to disputes,
If the parents cannot agree, the Alberta courts will intervene and settle matters in the best interests of the child. This starts with determining parenting and decision-making responsibilities so that the child’s immediate and longer-term needs are protected.
This responsibility requires making decisions in matters such as:
- Education
- Healthcare
- Religious upbringing
- Dietary needs
- Cultural upbringing
- Social curricular, etc.
Responsibilities of parents and guardians
Parents with decision-making responsibility assume the obligation to put the child’s interests first and nurture the child’s growth and development.
Parents and guardians are bestowed legal rights and duties to make significant decisions for the child’s well-being and upbringing, which is the cornerstone of Alberta’s child custody framework.
Unless proven contrary to the welfare of the child, decision-making is a shared responsibility in Alberta. Parents generally retain an equal right to make such decisions after they start to live “separate” lives.
However, the courts recognize that shared decision-making is only beneficial for the child if the parents can communicate effectively, respect each other’s roles, and cooperate for the child’s benefit. If this is not possible or domestic violence, drug abuse or other circumstances could potentially harm the child, the responsibility may be awarded to one parent only.
Guardians in Alberta must provide daily care for the child and ensure the child’s basic needs are met, including food, shelter, and emotional support, as well as making significant decisions on behalf of the child.
Guardianship for mothers and fathers in Alberta
Guardianship laws apply to married and unmarried parents and sometimes to third parties in Alberta.
Mothers become legal guardians of their offspring at birth. Guardianship for a father is presumed if one of the following applies:
- He is listed on the birth certificate
- He is married to the mother at the time of birth
- He demonstrates an intention to assume the responsibilities of a guardian
A father can establish an intention to assume the responsibilities of a guardian by:
- Voluntarily declaring himself as the child’s parent
- Providing reasonable notice to the mother of his intention to be a guardian, or
- Consistently and actively demonstrating an intention to treat the child as his own
Sometimes, if parentage is disputed, the courts will order DNA tests and an application for a Declaration of Parentage can be made.
Rights of decision-makers and guardians in Alberta
Alberta’s Family Law Act governs the rights and responsibilities of parents and guardians—including the right to make significant decisions on the aspects of a child’s life outlined already in this article.
Besides this, decision-makers (parents and guardians) have the right to access information relating to the child’s well-being, such as:
- Medical records
- Educational reports
- Any information that could influence decisions on the child’s welfare
These rights, however, are not absolute. The Alberta courts can reallocate or restrict these rights if they are deemed not to be in the best interest of the child.
Shared decision-making responsibility is determined by multiple factors but the overriding consideration is simply this: does shared decision-making by the parents best meet the child’s physical, emotional, and educational needs?
If the answer is yes, shared decision-making responsibility will be ordered. If not, the responsibility may be given to one parent alone.
In making this determination, the main factors considered by the court include:
- The parental relationship and effectiveness of communication: if parents communicate and cooperate effectively, shared parenting is more appropriate. The courts often work to protect a child from a high-conflict relationship with regular breakdowns of communication.
- The ability of parents to fulfill their parental responsibilities: shared decision-making is more suitable when both parents demonstrate that they are willing and able to meet their responsibilities.
- The financial fitness of each parent to meet their obligations: though rarely a conclusive factor in the decision-making process by judges, they will consider the relative incomes of parents and their ability to make decisions that are manageable for both parents and in the interest of the child.
- The child’s wishes and preferences: depending on the age and maturity of the child, his/her preferences may be considered by a judge (though judges are aware that parents sometimes influence young children to state a preference).
- The mental and physical health of parents: the physical and mental fitness of parents to participate effectively in decision-making affect whether shared decision-making is appropriate.
- Any history of family violence or abuse: shared decision-making might not be in the child’s best interest or could endanger the child.
- Geographical proximity: though living far apart will not necessarily deter effective decision-making, it can be a factor if parental communication is irregular or poor.
- Cultural and religious factors: if the cultural and religious beliefs and practices of parents are in conflict and could negatively influence the child’s upbringing, shared decision-making responsibility may be less preferable.
- External support and resources: in Alberta, multiple resources are available to assist parents in navigating shared decision-making, which increases the likelihood of such an arrangement being ordered by the courts.
It should be noted that even if one parent is given the sole right to decision-making responsibility in a custody case, the other parent usually retains the parental right to spend approximately equal time with the child—unless that right is restricted, suspended or, in rare cases, removed entirely.
Also, the Alberta courts recognize that circumstances can change; what was in the best interests of the child a year ago may no longer apply. Parents can remarry, relocate or suffer an accident or serious illness, for instance. This might warrant a modification of the court order on decision-making responsibilities.
At Jennings Family Law, we are dedicated to helping parents in Calgary achieve equitable outcomes in child support cases. Call (403) 316-0138 to request a confidential consultation, contact us directly online or email Warren Jennings directly at warren@jenningsfamilylaw.com.
