How Is Child Custody Decided in Alberta Courts?

Separating from a co-parent raises hard questions about where the children will live and who decides what. Most parents want to know how a judge would approach those questions before they step into a courtroom.

In Alberta the framework depends partly on whether you were married and whether a divorce has been started. The test at the centre is the same idea in both: what is best for the child, not what is fair to the parents.

This article covers the law of Alberta.

Which law applies to your case

If a divorce action has started, parenting is dealt with under the Divorce Act. The Family Law Act cannot be used for a matter already dealt with by an order or judgment under the Divorce Act.

If neither you nor the other guardian has started a divorce action and the child lives in Alberta, you can apply for a parenting order under the Family Law Act. Unmarried parents proceed under the Family Law Act.

Under the Divorce Act, a parenting order is an order about parenting time, decision-making responsibility, or both. Parenting time is the time a child spends in the care of a person, and decision-making responsibility is the responsibility for making significant decisions about the child's well-being.

The best interests of the child test

When making a parenting order or contact order under the Divorce Act, the court considers only the child's best interests. It must give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

Under Alberta's Family Law Act, if guardians cannot agree, a judge decides based on the child's best interests, aiming to protect the child's physical, psychological and emotional safety.

What a judge looks at

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

• 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
• Relevant civil or criminal proceedings and orders

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. Cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage, are factors too.

Family violence must be considered, including its nature, seriousness, frequency and timing, any pattern of coercive and controlling behaviour, whether the child was targeted or exposed, harm or risk of harm, and steps taken to prevent further violence. Past conduct is not considered unless it is relevant to the person's parenting time, decision-making responsibility or contact.

Agreements come first, courts second

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.

Under the Divorce Act, the court must include a parenting plan submitted by the parties in a parenting order unless it is not in the child's best interests. The court may also direct the parties to attend a family dispute resolution process.

What to do next

• Find out whether a divorce action has been started, since that decides which law applies.
• Register for the Parenting After Separation course, which is required before filing a divorce or Family Law Act application in the Court of King's Bench.
• Write down the child's routines, care history and your proposed plan.
• Keep communication with the other parent calm and child-focused.
• Speak with a lawyer about your own facts before you file.

In Greater Edmonton, Calgary, Red Deer and Grande Prairie, the Family Justice Strategy adds more steps before filing, such as showing that you tried alternative dispute resolution within the past 6 months. If you cannot complete a mandatory requirement, for example because of family violence concerns, you can file a request to waive or defer it.

Frequently asked questions