Is 50/50 Shared Parenting Automatic in Alberta?

Many people believe that when parents separate in Alberta, the law gives each of them half the time with the children. It is a common belief, and it can shape how you feel about a proposed schedule before you have talked to the other parent or to a lawyer.

The reality is more flexible. Courts do not start from a 50/50 split. They look at what suits the particular child. This article explains the rule, the factors that shape a real schedule, and what you can do if you and the other parent already agree.

This article covers the law of Alberta.

What the law actually says about equal time

Under the federal Divorce Act, when a court makes a parenting order or contact order, it considers only the child's best interests. That is the one test. What either parent wants, or feels they are owed, is not the starting point.

The Act also contains what is often called the maximum contact principle. The court gives effect to the principle that 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. It is not a presumption of equal time.

In practice, some children end up with a roughly equal schedule and many do not. It depends on the child's needs and the family's circumstances.

Safety and well-being come first

When the court applies the list of best-interests factors, it must give primary consideration to the child's physical, emotional and psychological safety, security and well-being. The maximum contact principle applies only to the extent it is consistent with the child's best interests, so where safety is a concern, safety takes priority.

The court must consider any 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 the steps the person has taken to prevent further violence.

Factors that shape the actual schedule

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 side'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. The child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage, is another factor.

A person's past conduct is not considered unless it is relevant to the exercise of their parenting time, decision-making responsibility or contact.

Time, decisions and agreements

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. These are separate questions. Unless the court orders otherwise, the person who has parenting time has exclusive authority to make day-to-day decisions during that time.

Decision-making responsibility can go to either spouse, to both, or to a non-spouse who is a party to the application. It can be sole or joint, and it can be divided by subject. A schedule that is close to equal does not automatically mean joint decision-making, and the reverse is also true.

If you and the other parent agree, you do not necessarily need a court. In Alberta, guardians who agree after separation can keep exercising guardianship powers without a court order. Under the Divorce Act, if the parties submit a parenting plan to the court, the court must include it in the parenting order unless it is not in the child's best interests.

If you are not married or not divorcing

Divorce Act orders apply where there is a divorce proceeding. If you were not married, or no divorce has been started, parenting is generally dealt with under Alberta's Family Law Act. You can apply for a Family Law Act parenting order if no divorce action has been started and the child lives in Alberta. Where a divorce action has started, parenting is dealt with under the Divorce Act instead.

Alberta guidance describes a similar approach. 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. The factors include the child's care history, the child's views, the benefit of relationships with both parents or guardians, and any history of family violence.

Decision-making in Alberta is tied to guardianship rather than parentage status, and in most cases a child's parents are also guardians. Whether a parent is a guardian can depend on the facts, so confirm your position with a lawyer if it is unclear.

What to do next

• Write down the child's routine, school, health needs and who has done what caregiving so far.
• Think about a schedule from the child's point of view, not as a share to be divided.
• Raise any safety concerns early and keep records of them.
• If you agree with the other parent, put the schedule and decision-making in a written parenting plan.
• Take the Parenting After Separation course if you will be filing in the Court of King's Bench, since it is required before filing.
• Speak with a lawyer before signing anything or filing an application.

Frequently asked questions