Does Alberta Favour 50/50 Parenting Time After Separation?

Many parents assume the law starts from a 50/50 schedule. That is not how the Divorce Act is written, and it can change what you expect from a court.

This article explains the best interests test, the maximum contact principle, and what they mean for parenting schedules. It also touches on how decision-making is shared and which steps usually come first. A lawyer can confirm how all of this applies to your family.

This article covers the law of Alberta.

There is no automatic equal split

The maximum contact principle says a child should have as much time with each spouse as is consistent with the child's best interests. It is a guiding principle that sits below best interests, and it is not a presumption of equal (50/50) time.

In plain words, the law encourages meaningful time with both parents, but only as far as that suits the child. Your child's needs set the schedule, not a fixed formula.

Which law applies depends on your situation. Where a divorce action has started, parenting is dealt with under the Divorce Act, and the Family Law Act cannot be used for a matter already dealt with by an order or judgment under the Divorce Act. If no divorce action has been started by you or the other guardian and the child lives in Alberta, you can apply for a parenting order under the Family Law Act.

The best interests test comes first

When making a parenting order or contact order, the court considers only the child's best interests. When it applies the factors listed in section 16(3) of the Divorce Act, it must give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

Alberta guidance says that where guardians cannot agree, a judge decides based on the child's best interests, aiming to protect the child's physical, psychological and emotional safety.

Two terms come up often. Parenting time is the time a child spends in the care of a person under a parenting order, and decision-making responsibility is the responsibility for making significant decisions about a child's well-being.

Factors that shape a schedule

The Divorce Act lists factors the court considers. They include:

• The child's needs for their age and stage, including stability.
• The child's relationships with each parent, siblings, grandparents and others.
• Each person's willingness to support the child's relationship with the other parent.
• The history of the child's care and each person's plans for care.
• Each person's ability to meet the child's needs and to communicate and cooperate.
• Any relevant civil or criminal proceedings and orders.
• The child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage.

The court also considers the child's views and preferences, giving them due weight according to the child's age and maturity, unless they cannot be ascertained. The Act sets no age at which a child decides.

The court does not consider a person's past conduct unless it is relevant to their parenting time, decision-making responsibility or contact.

Decision-making and day-to-day care

Parenting time and decision-making are separate questions. Decision-making responsibility may be allocated to either spouse, to both spouses, or to a person other than a spouse who is a party to the application, so it can be sole or joint, and can be divided by subject.

Unless the court orders otherwise, the person who has parenting time has exclusive authority to make day-to-day decisions affecting the child during that time.

In Alberta, the ability to make decisions about a child is tied to guardianship, and in most cases a child's parents are also guardians. 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, which can divide parenting time, assign specific responsibilities, or set a process for resolving future disputes.

When safety is a concern

The maximum contact principle applies only to the extent it is consistent with the child's best interests. Where safety is a concern, such as family violence, the child's safety, security and well-being take priority.

The court must consider family violence and its impact, including its nature, seriousness, frequency and timing, and any pattern of coercive and controlling behaviour. It also looks at whether the child was targeted or exposed, any harm or risk of harm to the child, and steps the person has taken to prevent further violence.

What to do next

• Think about what schedule suits your child's age, needs and routine.
• Gather information on who has cared for the child so far.
• Try to agree on a parenting plan, which the court must include in its order unless it is not in the child's best interests.
• Take the Parenting After Separation course if you will file in the Court of King's Bench, since it is required.
• Get legal advice if safety is a concern.

If you will file in Greater Edmonton, Calgary, Red Deer or Grande Prairie and cannot complete a mandatory requirement there, such as the course, you can file a Request to Waive/Defer Mandatory Requirements form, and reasons include family violence concerns. Whether that fits your situation is worth confirming with a lawyer.

Frequently asked questions