How Family Violence Affects Parenting and Custody in Alberta

If you have experienced violence from a former partner and you share a child, you may worry that the court will still expect lots of contact. You may also be worried that no one will believe you. Understanding how Alberta courts are told to treat family violence can help you prepare for those conversations.

This article explains the main rules in plain language. It covers the Family Law Act, the Divorce Act for married parents, how violence is proven, what conditions a court can set, and how protection orders fit in. It is general information, not advice for your situation.

This article covers the law of Alberta.

Safety comes first under the Family Law Act

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

The court can also look at whether it is appropriate to require guardians to co-operate with each other. In a case with violence, an order that depends on close co-operation may not make sense, so this part of the law matters.

What counts as family violence and what must be proven

Under the Family Law Act, family violence must be established on a balance of probabilities. In plain words, that means the court must find it more likely than not that the violence happened. What evidence is useful depends on your situation, so it is worth confirming with a lawyer.

The Family Law Act definition has limits. It excludes reasonable force used as correction and acts of self-protection or protection of another person. This matters if you acted to protect yourself or your child, because the definition is meant to separate that from abuse.

Whether a particular event counts is a question of fact. A lawyer can help you think through how your circumstances fit the definition.

Married parents and the Divorce Act

If you are married and seeking or have been granted a divorce, Divorce Act s. 16 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 violent person's ability to care for the child and whether orders requiring cooperation are appropriate.

Section 16(4) lists factors the court looks at:

• 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.

The Divorce Act also says 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, this maximum-contact principle gives way.

Terms, conditions and how parenting time can be shaped

The court is not limited to an all-or-nothing choice. It may attach terms, conditions and restrictions to a parenting order. Contact can be by visits or by communication, and can be made subject to conditions.

What conditions are appropriate depends on the facts, the child's needs and the evidence. Arrangements such as supervised exchanges are sometimes discussed in practice, but they are not a set rule in the legislation. They would fall under the court's general power to set terms and conditions.

How protection orders connect, and what to do next

A protection order is a separate process from a parenting order, but the two can overlap. A King's Bench protection order may be granted if the judge finds the claimant has been the subject of family violence. It can include counselling for the respondent, or for a child without the respondent's consent. It can also include no-contact terms and exclusive occupation of the residence for a specified period.

Protection orders generally last for the period the judge considers appropriate, up to one year unless extended. The Court of King's Bench may extend one on application for periods of up to one year each. How a protection order and a parenting application fit together depends on your situation, so it is worth confirming with a lawyer.

• Write down dates, events and what the child saw or heard, as accurately as you can.
• Keep copies of any orders, messages, medical records or police file numbers.
• If you are in immediate danger, contact police or RCMP.
• Speak to a family lawyer about protection orders and parenting applications together.
• Follow every term of any order you already have.

Frequently asked questions