Is 50/50 Parenting Time Automatic in Alberta?

When parents separate, many assume the law gives each of them half the time with the children. It is a common belief, and it often causes disagreement before anyone has talked to a lawyer.

The short answer is that equal time is not automatic in Alberta. What the court looks at is what arrangement suits your child. This article explains how that works, what the court weighs, and what it means if you and the other parent agree.

This article covers the law of Alberta.

No 50/50 presumption: best interests is the test

Under the Divorce Act, when a court makes a parenting order or contact order, it considers only the child's best interests. The court must give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

The Divorce Act also contains the maximum contact principle. It says a child should have as much time with each spouse as is consistent with the child's best interests. That is a guiding principle that sits below best interests. It is not a presumption of equal time.

In practice, some children end up with roughly equal time and many do not. The result depends on the child and the family, not on a starting formula.

What actually decides how time is split

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, and the history of the child's care. They also include each person's plans for care, their ability to meet the child's needs, and their ability to communicate and cooperate.

• Each person's willingness to support the child's relationship with the other parent.
• The child's views and preferences, given due weight according to age and maturity, unless they cannot be ascertained.
• The child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage.
• Any relevant civil or criminal proceedings and orders.

The Act sets no age at which a child decides for themselves. A child's views are one factor among several.

Safety, family violence and past conduct

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. That includes 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 to the child, and steps the person has taken to prevent further violence.

Outside of that, the court must not consider a person's past conduct unless it is relevant to the exercise of their parenting time, decision-making responsibility or contact. Arguments about who was to blame for the breakup generally do not help unless they bear on parenting.

Agreements, parenting plans and day-to-day decisions

If you and the other parent agree, the court must include a parenting plan you submit in a parenting order unless it is not in the child's best interests. Under the Divorce Act, parenting time is the time a child spends in the care of a person, and decision-making responsibility is the responsibility for significant decisions about the child's well-being.

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. Decision-making responsibility can be given to one spouse or both, so who decides major issues is a separate question from how time is divided.

If you are unmarried or not yet divorcing, the Family Law Act route applies instead. Guardians who agree can keep exercising guardianship powers after separation without a court order. If they disagree, either guardian can apply for a parenting order, and a judge decides based on the child's best interests. The Family Law Act cannot be used for a matter already dealt with under the Divorce Act, and once a divorce action has started, parenting is dealt with under the Divorce Act.

Why equal time can matter later, and what to do next

An equal-time arrangement can affect a future move. Under the Divorce Act, if the parties substantially comply with an order or agreement giving the child substantially equal time, the person who wants to relocate must prove the move is in the child's best interests. If the child spends the vast majority of time with the person who wants to relocate, the person opposing must prove the move is not in the child's best interests; in other cases the burden is shared.

• Write down your child's routines, schooling, health needs and who has handled them.
• Think about what schedule works for your child, not only what feels fair to you.
• Consider a written parenting plan with the other parent.
• Keep records of any safety concerns and get advice promptly if there is family violence.
• Talk to a lawyer about whether the Divorce Act or Family Law Act applies to you before you file or sign anything.

Frequently asked questions