Can a Mother Keep the Father From Seeing the Child in Alberta?

Being kept from your child is stressful, and it is easy to feel that the law offers no quick answer. In Alberta, the next step depends on a few basics: whether you are a guardian, whether there is already an order, and whether a divorce is involved.

This article walks through those points in plain language. It is general information and not a substitute for advice on your own facts.

This article covers the law of Alberta.

Does it matter if you are a guardian?

Yes. In Alberta, the ability to make decisions about a child is tied to guardianship, not parentage status. A guardian under the Family Law Act is a guardian for all legal purposes, and in most cases a child's parents are also guardians.

A birth mother is already a legal guardian. A father or other parent may be a guardian automatically in several situations. For example, he may be a guardian if he lived with the mother for at least 12 months including when the child was born, or was married to her when the child was born.

There are other routes too:

• Marriage or an adult interdependent relationship after the birth, financial or non-financial support, or behaviour showing intent to take on guardianship responsibilities, where this occurred within 1 year of finding out about the child.
• A divorce during the pregnancy with less than 300 days before the birth.
• An adult interdependent relationship at the birth that lasted 3 years, or under 3 years where both signed an Adult Interdependent Partnership Agreement or the two had a child together.
• A court order saying he is the guardian or only parent, or a written deal with the other parent saying he is a guardian.

If none of these fit, a parent who is not a guardian can apply for a Guardianship Order using Claim – Family Law Act (CTS3459) and Adult's Statement – Guardianship of Child (CTS3484).

If there is no court order

A person without a court order has no order to enforce. The guidance says to apply first for a Contact Order, Custody and Access Order or Parenting Order.

After separation, guardians who agree can keep exercising guardianship powers without a court order. If they disagree, either guardian can apply for a parenting order. If a judge has to decide, the decision is based on the child's best interests, including the child's care history and the benefit of relationships with both parents or guardians.

A person who is not a guardian applies for a Contact Order instead, using Claim – Family Law Act, Statement – Contact and Affidavit of Service – Applicant. A contact order sets out visits, calls or letters and does not give rights or responsibilities over the child.

Applying for a parenting order

To apply for a Family Law Act parenting order, use Claim – Family Law Act, Affidavit of Service – Applicant, and either Statement – Parenting (to share responsibilities and decision-making) or Statement – Parenting (Sole Guardian). You can apply if no divorce action has been started by you or the other guardian and the child lives in Alberta.

File at the same court and location where you have already been to court with the other party or started an action. Otherwise you can file at any court in Alberta.

If a divorce action has started, the Family Law Act cannot be used for a matter already dealt with under the Divorce Act, and parenting is dealt with under the Divorce Act instead. There, a spouse can apply for a parenting order, and the court considers only the child's best interests.

Before you file, the Parenting After Separation course is required for a divorce or Family Law Act application in the Court of King's Bench. In Greater Edmonton, Calgary, Red Deer and Grande Prairie, where the Family Justice Strategy applies, a party who cannot complete a mandatory requirement can file a Request to Waive/Defer Mandatory Requirements form, for reasons including family violence concerns or inability to locate the other party.

If you have an order and time is denied

To enforce parenting time under the Family Law Act, you need a court order describing your parenting time. You apply with Claim (CTS3459), Statement – Enforcement of Time with a Child (CTS3478) and Affidavit of Service (CTS3513), attaching the order, at the court that granted it, and you serve the other parent in person, since mail is not allowed.

If parenting time is denied, the court can order police help, make-up visits, security, payment of your expenses, a penalty of up to $100 per day of denied time, or jail. If a child is not returned after a visit, the court can order police to find and return the child, security, expenses, up to $100 per day, or jail.

Where a divorce is involved, the Divorce Act also says parties must comply with an order until it is no longer in effect.

What to do next

• Find out whether you are a guardian, and gather any order, written agreement or proof of living together.
• Keep a dated record of requests for time, refusals and messages, written calmly.
• Propose a clear schedule in writing, since the court looks at each person's willingness to support the child's relationship with the other parent.
• Check whether the Parenting After Separation course applies to you, since it is required before a divorce or Family Law Act application in the Court of King's Bench.
• Speak with a lawyer about the right application and any safety concerns before you file.

Frequently asked questions