Divorces aren’t easy, especially when there are children involved. A common question that comes up is “Who gets custody of the child?”
The guiding principle in answering this question, from a legal point of view, is always the parenting / custody arrangement deemed to be in the best interests of the child.
Section 18 of the Family Law Act of Alberta spells out the factors that the Court will consider in determining what is in the child’s best interests in order to:
(a) ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and
(b) consider all the child’s needs and circumstances, including
- the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development,
- the history of care for the child,
- the child’s cultural, linguistic, religious and spiritual upbringing and heritage,
- the child’s views and preferences, to the extent that it is appropriate to ascertain them,
- any plans proposed for the child’s care and upbringing,
- any family violence, including its impact on
- the safety of the child and other family and household members,
- the child’s general well‑being,
- the ability of the person who engaged in the family violence to care for and meet the needs of the child, and
- the appropriateness of making an order that would require the guardians to co‑operate on issues affecting the child,
- the nature, strength and stability of the relationship
- between the child and each person residing in the child’s household and any other significant person in the child’s life, and
- between the child and each person in respect of whom an order under this Part would apply,
- the ability and willingness of each person in respect of whom an order under this Part would apply
- to care for and meet the needs of the child, and
- to communicate and co‑operate on issues affecting the child,
- taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian,
- the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and
- any civil or criminal proceedings that are relevant to the safety or well‑being of the child.
Upon weighing all these factors, the courts will decide what type of parenting regime is in the best interests of the child.
The Divorce Act and the Family Law Act
The Divorce Act of Canada is federal legislation that applies to married couples only. The Family Law Act of Alberta applies to both married and unmarried couples. While the two Acts utilize somewhat different terminology, they share the same focus on promoting the best interests of the child.
Custody & Access under the Divorce Act
Sole Custody: This grants both “primary care” (physical custody) and decision-making authority for the child to one parent. The other parent may still have specified “access” to or “parenting time” with the child.
Joint Custody: This means both parents share decision-making authority for the child, even though one parent may have primary or “residential” care and the other may be the access parent.
Shared parenting: This arrangement is one in which both parents have care of the child between 40% and 60% of the time, and typically share decision-making.
The type of parenting arrangement in turn effects how child support is calculated.
When families come apart, the issue of child custody can be very challenging and contentious. The complexities of the legal processes, not to mention legal terminology, can be daunting. At Bowie Law, we offer a free 30 minute consultation on all family law matters. If you are in need of a reliable, committed family lawyer to help you though this period of transition, do not hesitate to call us at 587-454-0821.