How Family Violence Affects Parenting Time in Alberta

If you are separating from someone who has been violent or controlling, one of your first worries is likely how your children will be kept safe, and what time they will spend with the other parent. The answer depends on the facts, but the law gives family violence real weight.

This article explains in plain terms how Alberta courts approach family violence when they make parenting decisions, what conditions they can set, and how protection orders relate to all of this. It is general information, not advice on your situation.

This article covers the law of Alberta.

What the court must consider

For parenting matters under Alberta's Family Law Act, the court must ensure the greatest possible protection of the child's physical, psychological and emotional safety. It must also consider any family violence, including its impact on the child's safety and well-being and the abuser's ability to parent.

For married spouses who are seeking or have been granted a divorce, the Divorce Act applies. The court gives primary consideration to the child's safety, security and well-being and must consider any family violence and its impact, including the ability of the violent person to care for the child.

In both cases the court also looks at whether orders requiring the parents to co-operate are appropriate. That matters when one parent has been controlling or frightening to the other.

What counts as family violence

The Family Law Act has its own definition of family violence. It excludes reasonable force used as correction and acts of self-protection or protection of another person.

Under the Divorce Act, the court looks at a list of factors:

• The nature, seriousness and frequency of the violence and when it occurred.
• Whether there is a pattern of coercive and controlling behaviour.
• Whether the violence is directed toward the child or exposes the child to it.
• Harm or risk of harm to the child.
• Whether it makes a family member fear for their safety.
• Any steps the violent person has taken to prevent further violence.

Violence does not have to be aimed at the child to matter. Exposure and the effect on the other parent are part of the picture.

Proving it and how it shapes parenting time

Under the Family Law Act, family violence must be established on a balance of probabilities. In plain words, the court must find it more likely than not that it happened.

Under the Divorce Act, a child should have as much time with each spouse as is consistent with the child's best interests. Where family violence makes more time inconsistent with the child's best interests, that principle gives way.

This does not mean contact always ends. The court can attach terms, conditions and restrictions to a parenting order. Contact can be by visits or by communication, and it can be made subject to conditions.

Conditions, decision-making and supervised exchanges

Because the court can set terms and conditions on a parenting order, the arrangement can be tailored to the safety concerns. Supervised exchanges, where a third person is present when a child is handed over, are not named as a statutory rule, so whether one is ordered depends on the facts and the court's general power to set conditions.

On decision-making, the court considers whether it is appropriate to require guardians to co-operate. If one parent has used violence or control, a requirement to make joint decisions may not be suitable, though that depends on the case.

Protection orders and what to do next

A protection order is separate from a parenting order. An emergency protection order is made without notice to the other party, can remove the offender from the home, and must be reviewed by a judge within 9 working days. A King's Bench protection order is for less urgent situations and requires notice to the other party. A protection order may include no contact, and that covers contact by any means, including through a third party, unless the order says otherwise. Anyone who is in immediate danger should call police or RCMP.

• Write down incidents with dates, and keep messages, photos and any medical records.
• Keep copies of any protection order and note its review date.
• Tell your lawyer about any order before agreeing to exchange arrangements.
• Ask a lawyer how your facts fit the Family Law Act or the Divorce Act, depending on whether you were married.

Frequently asked questions