Child custody basics in an Alberta divorce

On behalf of Gary Kirk of Kirk Montoute Dawson LLP posted in Family Law on Monday, June 6, 2016.

Most parents are laser focused on the well being of their children when making decisions impacting kids in the divorce process. A fair amount of anxiety can accompany such concerns when the future arrangements are still undetermined. A divorcing parent not only wants the children to be happy and healthy after the marriage ends, but also may worry about how much time he or she will have with them. 

Matters of child custody and child access, also known as visitation, are decided in Alberta under both the federal Divorce Act and the Alberta Family Law Act, both of which direct courts to base all child custody decision making on the best interests of the children involved.

The Divorce Act says that the children’s best interests should be determined by consideration of the “condition, means, needs and other circumstances of the child.” The Act also allows only consideration of past conduct of a parent that is relevant to his or her ability to parent and not of conduct irrelevant to parenting. The federal law also directs maximum contact with each parent so long as it is in the best interest of the children and also considering the willingness of each parent to have that access. 

The Alberta Family Law Act goes into much more detail about what factors are to be weighed to determine children’s best interests, which is to be done in a way that ensures the “greatest possible protection of the child’s physical, psychological and emotional safety” and takes into account all of the children’s needs and circumstances including a specific list of factors. 

We will continue this discussion of child custody in Alberta, including more about the factors to consider under provincial law, the reasons it can be beneficial to negotiate an agreement determining child custody and access matters (rather than leaving it to the judge) and what happens if the arrangement needs to be modified after the divorce is final.

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