How to Vary a Parenting Order in Alberta Court

Parenting arrangements that worked when the order was made can stop working. A parent may move, a child's needs may change, or a work schedule may no longer fit the time set out in the order.

This article explains who can apply to vary a parenting order in Alberta, what must have changed, what a judge weighs, and the general steps. It is general information, and your situation may call for advice.

This article covers the law of Alberta.

Which law applies and who can apply

If you were married and the order was made under the federal Divorce Act, section 17 applies. If it was made under the Alberta Family Law Act, section 34 applies, and the court may vary, suspend or terminate a parenting order or any part of it.

Under the Divorce Act, either or both former spouses can apply to vary a parenting order. A person who stands in the place of a parent, or is a parent, can also apply. A person to whom the parenting order does not relate, for example a non-parent, may apply only with leave (permission) of the court. A contact order may be varied on application by the person to whom the order relates.

What has to have changed

Under the Divorce Act, the court must be satisfied that 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. The focus is on the child, not only on what is hard for a parent.

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

What the judge looks at

Once a change is shown, the court looks only at what is right for the child in making or varying a parenting order, giving primary consideration to the child's physical, emotional and psychological safety, security and well-being. Factors under the Divorce Act include:

• the child's need for stability and relationships with each parent
• each spouse's willingness to support the child's relationship with the other
• the history of care and each parent's plans for care
• the child's views and preferences
• the parents' ability to cooperate
• family violence, and other relevant civil or criminal proceedings or orders

A child should have as much time with each spouse as is consistent with the child's best interests.

Steps, forms and court

To change an Alberta parenting order, Alberta.ca says to file a Claim – Family Law Act, a Statement – Vary Parenting and an Affidavit of Service – Applicant. File at the same court and location as earlier proceedings, or at any court in Alberta if there were none.

If the parenting order was made outside Alberta, 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.

People in Greater Edmonton, Calgary, Red Deer or Grande Prairie may have to follow the Family Justice Strategy (resolution steps) before going to court on a change application. Outside those areas, that requirement does not apply.

Changing by agreement instead

A Consent Order needs both parties to sign it. An agreement can be changed without court by negotiating with the other parent, or by family mediation if you cannot agree. To make a new consent order in the Court of King's Bench, you complete the Consent Order and Ex Parte Application, both sign before one or two witnesses, each witness completes an Affidavit of Execution before a Commissioner of Oaths, and a judge signs in Morning Chambers (in Edmonton, see a court forms information coordinator). You then file the order at the clerk counter and give the filed copy to the other party.

If one party will not agree to change a consent order, a court application under Divorce Act section 17 or Family Law Act section 34 or 77 is needed, and the applicant must show the statutory change in circumstances.

What to do next

• Find your order and confirm whether it was made under the Divorce Act or the Family Law Act.
• Write down what has changed for the child, and when.
• Gather the old order and any records that show the change.
• Raise it with the other parent or try mediation first.
• If you need to apply, confirm the forms and court that fit your case, and speak with a lawyer if the order came from outside Alberta or conduct, safety or relocation is involved.

Frequently asked questions