How to Vary a Parenting Order in Alberta After Things Change

A parenting order is not always permanent. A move, a new work schedule or a child's changing needs can make the old schedule hard to follow. Many parents wonder whether they can simply start doing something different. Because a court made the order, the safer path is to change it properly rather than quietly doing something else.

This article explains which law applies, what the court looks at, the agreement route and the court route, and the practical steps. Your facts matter a great deal, so treat this as general information and confirm your own situation with a lawyer.

This article covers the law of Alberta.

Which law applies to your order

The law depends on how your order was made. If it was made under the federal Divorce Act, either or both former spouses can apply to vary it. A person who stands in the place of a parent, or is a parent, can also apply. Someone to whom the order does not relate, such as a non-parent, needs the court's permission first.

If the order was made under the Alberta Family Law Act, the court may vary, suspend or terminate a parenting order or any part of it. Which statute covers your order depends on how and where it was made, so it is worth confirming with a lawyer.

What the court must be satisfied of

Under the Divorce Act, the court must be satisfied there has been a change in the circumstances of the child since the order was made. Under the Family Law Act, it must be satisfied that a change in the needs or circumstances of the child has occurred. Notice that both tests focus on the child, not just on your own convenience.

Under the Divorce Act, in making or varying a parenting order the court considers only the best interests of the child, giving primary consideration to the child's physical, emotional and psychological safety, security and well-being. The factors include the child's need for stability, relationships with each parent, each parent's willingness to support the child's relationship with the other, history of care, the child's views and preferences, plans for care, ability to cooperate and family violence. A child should have as much time with each spouse as is consistent with the child's best interests.

Under the Divorce Act the court also must not consider conduct that could not have been considered when the original order was made. A former spouse's terminal illness or critical condition is to be considered a change in the circumstances of the child.

Changing it by agreement

If you and the other parent can agree, an agreement can be changed without going to court by negotiating, or by family mediation if you cannot agree on your own. A Consent Order needs both parties to sign it.

To make a new consent order in the Court of King's Bench, the steps are:

• Complete the Consent Order and Ex Parte Application.
• Both parties sign before one or two witnesses.
• Each witness completes an Affidavit of Execution before a Commissioner of Oaths.
• A judge signs in Morning Chambers, and in Edmonton you see a court forms information coordinator.
• File the order at the clerk counter and give the filed copy to the other party.

Changing it through the court

If the other parent will not agree, a court application under Divorce Act s. 17 or Family Law Act s. 34 is needed, and you must show the statutory change in circumstances.

For an Alberta parenting order, Alberta.ca says to file the Claim – Family Law Act, the Statement – Vary Parenting and the Affidavit of Service – Applicant. File them at the same court and location as the earlier proceedings, or at any court in Alberta if there were none. Which court is right for your file can depend on the statute and your history, so confirm it before you file.

There are two special situations. If the order was made outside Alberta, you get a certified copy of the original order and file the Originating Application, Affidavit and Affidavit of Service from the Extra-provincial Enforcement of Custody Orders Act info pack at any Alberta court. And if you are in Greater Edmonton, Calgary, Red Deer or Grande Prairie, you may have to follow the Family Justice Strategy resolution steps before going to court.

What to do next

• Write down what has changed for the child and when it happened.
• Gather the current order and any earlier agreements or court documents.
• Try a conversation or mediation with the other parent first.
• Check whether the Family Justice Strategy applies where you live.
• Ask a lawyer what you should do about the current order while a change is being worked out, because the answer depends on your situation.
• Speak with a family lawyer before filing, especially if the order came from outside Alberta or the other parent opposes the change.

Frequently asked questions