How to Change a Parenting Agreement or Consent Order in Alberta

Parenting arrangements that worked a year or two ago can stop working. A child gets older, a parent moves, or a work schedule changes. If you already have a parenting agreement or a consent order, you may wonder how to change it without starting over.

In Alberta there are three main routes. You can agree on the change together, turn that agreement into a new consent order, or ask a court to change the arrangement when the other parent will not agree. This guide walks through each one and what to do if the other parent is not following the current terms.

This article covers the law of Alberta.

Route one: agree on the change

An agreement can be changed without going to court by negotiating with the other parent. If the two of you cannot agree, family mediation is the next step.

A Consent Order is different from an informal agreement because it needs both parties to sign it. How a change applies to an existing court order depends on your situation, so it is worth confirming with a lawyer. Many parents then take the second route below to make the new terms an order.

• Write down exactly what you want to change and why it helps the child.
• Raise it calmly and in writing, so there is a record of what was proposed.
• If talks stall, consider family mediation rather than going straight to court.
• Keep the old terms in place until a new agreement or order is signed.

Route two: make a new consent order

If you both agree on the new terms, you can ask the Court of King's Bench to make a new consent order. The steps are set out in order below.

• Complete the Consent Order and Ex Parte Application.
• Both parties sign it before one or two witnesses.
• Each witness completes an Affidavit of Execution before a Commissioner of Oaths.
• A judge signs the order in Morning Chambers. In Edmonton, you see a court forms information coordinator.
• File the order at the clerk counter and give the filed copy to the other party.

Because both parents have agreed, this route is usually the simplest. Take care with the wording, since the order will be what you both must follow and what can later be enforced.

Route three: apply to court when the other parent will not agree

If one party will not agree to change a consent order, a court application is needed, and the applicant must show the change in circumstances the statute requires. The Divorce Act, s. 17 applies to former spouses, and the Family Law Act (Alberta), s. 34 lets the court vary, suspend or terminate a parenting order or any part of it.

Under the Divorce Act, a former spouse's terminal illness or critical condition is to be considered a change in the circumstances of the child. The court also must not consider conduct that could not have been considered when the original order was made.

Who can apply depends on the law. Under the Divorce Act, either or both former spouses can apply to vary a parenting order, and so can a person who stands in the place of a parent or is a parent. A person to whom the order does not relate, such as a non-parent, needs the court's permission first.

What the court looks at: the child's best interests

Showing a change in circumstances opens the door, but it does not decide the outcome. In making or varying a parenting order, the court considers only the best interests of the child, giving primary consideration to the child's physical, emotional and psychological safety, security and well-being.

The factors include the following:

• The child's need for stability and relationships with each parent.
• Each parent's willingness to support the child's relationship with the other.
• The history of care and each parent's plans for care.
• The child's views and preferences.
• The parents' ability to cooperate.
• Family violence, and other relevant civil or criminal proceedings or orders.

The Divorce Act also says a child should have as much time with each spouse as is consistent with the child's best interests.

Filing, where to file, and what to do next

To change an Alberta parenting order, Alberta.ca says to file a Claim – Family Law Act, a Statement – Vary Parenting and an Affidavit of Service – Applicant. File at the same court and location as the earlier proceedings, or at any court in Alberta if there were none. If the parenting order was made outside Alberta, you need a certified copy of the original order and different documents, filed at any Alberta court.

If you live in Greater Edmonton, Calgary, Red Deer or Grande Prairie, you may have to follow the Family Justice Strategy resolution steps before going to court on a change application. Outside those areas, that requirement does not apply.

If the other parent is not following the current agreement, you can apply for a court order. For missed parenting time under a court order, there is a separate enforcement process, so ask a lawyer which route fits your situation.

• Find your current agreement or order and note the exact terms you want changed.
• Decide whether the other parent is likely to agree.
• Try negotiation or family mediation first where it is safe to do so.
• Check whether the Family Justice Strategy applies where you live.
• Gather your forms and speak with a lawyer before filing if the situation is contested.

Frequently asked questions