When can a child decide which parent to live with in Alberta?

When can a child decide which parent to live with in Alberta?

When can a child decide which parent to live with in Alberta?

Divorce can be a complex and emotional process especially when involving children who are old enough to be aware of the circumstances and potential impacts to their own living situation. They often have their own perceptions of life after divorce driven by what they have observed or heard and often times their emotional needs are not placed as a priority when their parents are separating or divorcing. Because the nature of divorces can be quite tumultuous and riddled with disagreements – it is highly recommended to involve an Alberta divorce lawyer when it comes to dealing with parenting plans or child custody arrangements.

BONUS: Information For Children

EXTRA BONUS: Because Life Goes On…..Information For Parents

Relevant framework in Alberta

In Alberta, a child is considered to be any person under the age of 18 and only their parents or the Court can make the decision on where they live. The federal Divorce Act governs custody and access whereas Alberta’s Family Law Act addresses parenting times and other items. The Family Law Act states the Court must takes the child’s wishes into account and more weight is given the older the child is.

Canada has ratified the United Nations Convention on the Rights of the Child which dictates that children who are able to formulate an opinion on the matter have a right to express their views freely in legal proceedings. There are various examples of Canadian family law decisions which cite this obligation. In cases where child intervention is required, including adoption by a third-party guardian, Alberta’s Child, Youth and Family Enhancement Act applies.

However, the Canadian legal framework enforced by Alberta Courts will always prioritize the child’s best interests as the determining factor for which parent a child will reside with. Although the child’s wishes can be given weight these are not the only factors taken into consideration. Judges will always consider may other factors as well when debating who the child gets to live with and what type of access will be given.

Some of the key elements Alberta courts will consider regarding the child’s best interests include, but are not limited to:

  • Child’s physical, psychological and emotional needs;
  • Child’s access to school and healthcare;
  • Opportunity for least disruption to the child’s lifestyle (stability);
  • Opportunity to learn their heritage (language, culture and religion);
  • Degree of attachment to each parent;
  • History of family violence and criminal behaviour; and
  • more

Living arrangements after divorce: The role of the children’s voice

Oftentimes, children can vocalize a preference of which parent they would prefer to live with. Their preference can evolve over time, driven by a variety of factors (e.g. wanting to live in their childhood home, stay at the same school, etc.) and this is something the Courts will take into consideration when finalizing child custody arrangements.

The weight of the child’s voice in the Court’s decision depends on the child’s maturity level and age. Although the legislation does not define a minimum age, there are numerous reported case law that implies that a child’s wishes should “definitely be considered” at 12 years old according to Albers v Albers, 2011 ABQB 456. A child as young as 10 years old can at times have a voice as well according to RM vs JS, 2013 ABCA 441. Typically, when a child is aged 14 to 17, their opinion is an important factor in the Court’s consideration.

It is important to have evidence demonstrating the child is mature enough. If appropriate, this can be accomplished by a “Voice of the Child” report, where a qualified psychologist or counsellor meets with the child and documents their views and preferences. In some cases, this may not be appropriate if the child is placed in an uncomfortable position or if they are too young to express their views effectively.

The judge will apply the law depending on the circumstances of the family and ultimately decide whether the child’s preference is in line with their best interests (or not). Ultimately, even if one parent is granted “primary care”, the other parent is typically allowed to see the child and enquire about their care and well-being depending on the circumstances.

Speak with an Edmonton family lawyer today regarding your parenting arrangement

At Verhaeghe Law Office, our Alberta family lawyers are experienced in assisting families resolve their divorce needs and specific circumstances as amicably as possible. Especially when children are involved – it remains our priority to ensure their best interests are placed first. To better understand how we can assist with your parenting arrangement – contact our law firm today by calling 587-410-2500 and speak directly with a divorce lawyer regarding your child custody arrangements.

Note: This blog offers general information for your convenience and does not constitute legal advice. Family law can be complex and you’re encouraged to seek legal advice to better understand your rights and responsibilities as well as the rights of your children.

Divorce From a Man’s Perspective

Divorce from a Man's Perspective

What is Alternative Dispute Resolution

Divorce is a difficult life event for all parties involved. More men in recent years have been pushing for equal rights when it comes to child custody and other aspects of a divorce. Both men and women face repercussions during and after a divorce, but they can minimize the damage they do to their lifestyle, children’s lives, and assets. This traumatic event often clouds judgment, causing individuals to react emotionally and not always use facts to back their side. This is the second part of the two-part series exploring the women’s and men’s perspective on divorce. If you’re considering a divorce, call Verhaeghe Law Office at 587-410-2500 for a consultation to ensure your understanding of the divorce process.

Don’t Use Children As Leverage

A judge will grant custody to the parent who nurtures and fosters a positive relationship between the child and the other parent. In the end, the judge will rule in the child’s, not the parents’, best interest. Using your child to harm your former spouse’s feelings or to further your financial goals will be looked down upon and will be used against you.

Neglecting Family Duties

Being in divorce proceedings isn’t a ticket to not continue supporting your family. In fact, it’s quite the contrary. This is a time to ensure all of your finances are in order and that everybody is taken care of financially and emotionally. If you’re the breadwinner in your family, your financial responsibilities don’t end after filing. Meaning, you still need to help pay for utilities and mortgage for the marital home and keep up insurance coverages before the divorce is final. Cutting off support will do you no favors in the judge’s eyes.

Hiding Your Assets

Any attempt to hide assets will result in expensive litigation that could put you on the hook for your former wife’s lawyers’ fees as well. Being open and transparent about your finances evokes trust and that you’re willing to work through the issues. Hiding them has the complete opposite effect.

Don’t Be Indecisive

If you’ve been served divorce papers, this is a serious matter that you can’t just shrug off. Many studies have shown that most men don’t emotionally respond in the same way as women. Men will bottle it up, but again, this is the exact opposite of what you should do. Failing to act can have devastating consequences. Your wife and her lawyer are building a case and whether you’re ready or not, proceedings will take place. We can help prepare you for the road ahead.

You Have An Opportunity

Don’t believe the myth that as a man you will have less leverage over your wife in any part of the divorce process. Your best advantage during a divorce, a division of property, spousal support, and child custody is to hire an experienced family court lawyer. We have worked in many cases that have given men what they have needed to move on in their lives. Our team understands that the entire divorce process from beginning to end is challenging, but hiring Verhaeghe Law Office and showing you have the best interest of your family in mind will assist in getting the closure you crave.

Divorce from a Woman’s Perspective

Divorce from a Woman’s Perspective

What is Alternative Dispute Resolution

If you’re considering ending your marriage, make sure you’re basing your decision on facts, not misconceptions, about how divorce works in Canada. Both men and women may have false beliefs about the proceedings and outcomes prior to and during divorce. Before beginning the process, call Verhaeghe Law Office at 587-410-2500 for a consultation to ensure your understanding of the divorce process. This is part one of a two-part blog. Part one focuses on divorce from a woman’s perspective.

Divorce Act

In Canada, the Divorce Act is the federal law that addresses issues related to couples in the process of obtaining a divorce or are already divorced. To get a divorce, you must establish breakdown of a marriage. This includes living separately for at least one year before divorce proceedings, or the spouse being sued for divorce has committed adultery or physically or mentally abused the other spouse.

From Wife to Single Mom

Deciding to pursue a divorce, especially when you have children, is a difficult and emotional decision. We see divorces play out in television shows, movies, and fiction. In many instances, these portrayals are inaccurate and contain information that can be very misleading.

For example, you may have seen the scenario played out in which the husband has an extramarital affair which gives the wife an advantage in court when deciding matters of custody, alimony, or child support. While an affair establishes breakdown of a marriage to qualify for divorce, the fact that a husband has been unfaithful does not hold any bearing on the division of property or child custody.

Another oft-used plot device in dramatic television is the “marriage trap.” Your husband refuses to sign divorce papers, so you cannot divorce. In truth, you do not need your spouse to agree in order to obtain your divorce. If you’ve satisfied the grounds for divorce set forth by the Divorce Act, or if you have not lived with your spouse for a full year or more, you can file an application for a contested divorce, in which your husband does not need to sign.

Custody & Division of Assets

You have worked hard on your career during your marriage. You’ve saved and invested wisely. Your husband tends to spend more than he saves. Don’t go into these proceedings believing you have an edge because of your good financial habits. Unless you have a marriage contract, drawn up by a lawyer, that states that your finances are to remain separate from your spouse’s in case of dissolution of your marriage, your money isn’t safe. Your assets will be considered together and shared between you.

Don’t go from filing for divorce to the car dealership to buy that luxury car while you still have shared assets. It may seem like a good idea at the time, but ultimately it won’t be a benefit. Once you’ve filed for divorce, you are prohibited from making big purchases of liquidating assets.

Another myth that is commonly believed is that mothers always get custody of minor children. This is never a guarantee. Custody is determined by the best interests of the child. Several factors go into determining the “best interests,” but simply being a mother is not one of them.

Your Best Advantage

Don’t assume that as a woman, wife, and/or mother, you will have leverage over your husband during any part of the divorce process. Your best advantage during divorce, division of property, spousal support, and child custody is to hire an experienced family court lawyer. The lawyers at Verhaeghe Law Office in Alberta, Canada, have the knowledge and background to help you understand the court processes and obtain the best possible outcomes. Don’t go into court unprepared. Call us today. +1 587-410-2500