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 is a very complex and emotionally straining process, especially when involving children. However, when these children are old enough to understand what is going on, be aware of the divorce circumstances involved, as well as the potential impacts to their own living situation, the process can become even more difficult.

An older child can have their own preconceived perceptions of life after a divorce, driven by the things they’ve seen and heard when listening in on their parents or being around discussions and/or arguments. Similarly, it’s often that the child’s emotional needs are not taken into account as a top priority when their parents are either separating or divorcing, thanks to the heat these proceedings can generate.

During the divorce process itself, many children will often express preference over which parent they want to live with. Whoever a child feels closest to, or safest with, will always be their preferred guardian, and this can make arranging custody and access tricky to do. One parent may feel that the other parent is influencing their child, and vice versa, and may feel like they will be subjected to a poor arrangement following the divorce's finalization. 

And seeing as the innate nature of a divorce can be tumultuous and fuelled by constant disagreements, it is highly recommended to involve an Alberta divorce lawyer when it comes to dealing with parenting plans or child custody arrangements. Lawyers can make these arrangements much easier to come to, and can provide plenty of relevant advice on the pertinent child care questions you haven't been able to resolve. 

If you're curious about when a child can decide which parent they want to live with, and what weight their voice holds when going through divorce courts, we've listed our own legal advice below to help you come to an arrangement that makes sense for your family. 

The Relevant Legal Framework in Alberta

It's often thought that a child who is aged 12 and over has the right to make a choice about which parent they want to live with. However, this is simply not true, and the reality is a lot more complicated. 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 until this age is reached. At this point, a child is classed as a legal adult, and only then can they make a decision on their own living arrangements. 

Furthermore, the Federal Divorce Act controls custody and access arrangements, whereas Alberta's Family Law Act addresses parenting times and other relevant items. However, these laws are still incredibly important to the family arrangement decision. The Family Law Act states that the Court must take a child's wishes into account when considering where is best for them to live, and the older, more mature the child is, the more weight is given to their wishes. 

Canada has since ratified the United Nations Convention on the Rights of the Child, which dictates that children who are able to formulate their own opinions have a right to freely express their views on the matter of divorce during legal proceedings. Indeed, there are various examples of Canadian family law decisions which specially cite this obligation. In such cases where child intervention is required, including adoption by a third party guardian, Alberta's Child, Youth, and Family Enhancement Act will apply. 

It's important to note that the Canadian legal framework enforced by Alberta Courts will always prioritize a child's best interests as the main determining factor for which parent a child will live with. A child's wishes will always be given weight, but they won't ever be the only factor taken into consideration. Judges will take it upon themselves to consider many other factors concerning the family when debating the question of who the child gets to live with, and then what kind of access will be given to the other parent.

Some key legal elements a court will consider when acting in a child's best interest

The Courts will take many different elements into account when deciding which parent will get custody over their child. These include, but aren't limited to:

  • Child's physical, psychological and emotional needs; a child's wellbeing needs to be fully cared for by the parent who the child is legally required to live with, and a court will always take into account which parent is most suited to provide for these needs. 
  • Child's access to school and healthcare; children need to attend school, and in Alberta, they are legally required to do so until the age of 16. A child's attachment to their current school and/or community environment can also be taken into account via this ruling. 
  • Opportunity for least disruption to the child's lifestyle (stability); both parents will often be required by the Courts to undergo a Child Custody Assessment to ascertain their ability to provide a stable home and lifestyle. 
  • Child's current level of stability; as well as determining which parent can provide the best stable lifestyle for their child, the current living arrangements and how adjusted a child is to them will also be taken into account. 
  • Guardian's living arrangements; the Courts will factor in the way a parent lives, such as the size of their house, amount of space, etc., to see if a child will settle into their new home with little trouble. The Courts may even want to be sure that your child will be able to have their own room, and not have to share, as this can affect the child's privacy. 
  • Opportunity to learn their heritage (language, culture and religion); if a child has parents from different cultures, religions, or they speak different languages, the Court will consider how likely a child will be able to learn about the differences in their background when living with either parent. 
  • Degree of attachment to each parent; the relationship between the child and their parents will always be taken into account, and the degree of attachment (closeness) will be heavily evaluated in both cases. 
  • Guardian's ability to uphold relationships; whatever parent is decided to be the best carer for the child will need to assure the Courts that they can uphold the relationship their child has with the other parent. The parent needs to show willingness to allow access, and not allow their own feelings to potentially get in the way.
  • History of family violence and criminal behaviour; if there is confirmed evidence of criminal convictions regarding family violence, or even if there are allegations brought up against either parent, the Court will also take these matters into consideration. 

Living arrangements after a divorce: the role of the child's voice

As mentioned earlier, a child can often vocalize their preference of which parent they would prefer to lie with. This preference can change or evolve over time due to a variety of factors, including wanting to stay in their childhood home, or stay at the same school they're used to due to previous relationships they've established there. This is something the Courts will take into consideration as well when finalizing child custody arrangements. 

The weight a child's voice has when it comes to the Court's final decision will depend on the maturity level and age of the child in question. Although it's important to note that the legislation does not define a minimum age, there are numerous reported cases in law that implies a child's wishes should 'definitely be considered' by the age of 12, which is often thought to be that important maturity level (according to Albers v Albers, 2011 ABQB 456). However, a child as young as 10 years of age can also have a voice at times (according to RM v JS, 2013 ABCA 441). 

Typically, children who are aged 5 and under will not have much weight to their voice, but when a child is aged between 14 and 17, their opinion on the divorce and where they want to live will be a very important factor in the Court's consideration. 

Similarly, it is important to have evidence demonstrating that the child in question is mature enough. If it is appropriate to do so, this can be accomplished via the use of 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 however, this report will not be appropriate, particularly if the child undergoing this evaluation will be placed in an uncomfortable position, or they are too young to be able to express their views surrounding these complicated notions effectively. 

When this report is finalized, the judge will apply the law depending on the circumstances of the family, and ultimately decide whether the child's preference over their living situation is in line with their best interests. However, even if one parent is granted 'primary care', the other parent will usually be allowed to see and have access to the child, as well as enquire about their care and well-being depending on the circumstances, and still be able to make decisions revolving around the child's care. 

Understanding a child's best interests

In the midst of divorce proceedings, or just after an amicable separation, the time comes to decide who, what, and where will provide for any children you have together. Many people can feel like this is an impossible step in the divorce process, as one parent may have different aims to another, and coming to an agreement can take a long time. 

When it comes to putting together an acceptable and beneficial parenting plan, the Courts will always act in your child's best interests. If you and your ex partner or spouse are unable to come up with an agreed parenting plan off of your own backs, it's up to a Judge to decide the best schedule for your child's care. Above all else, the Judge will want to ensure that the child in question comes to no harm under the care of the parent they're placed under, and that this parent is the one best able to provide for them. 

Both physical and emotional needs come underneath this umbrella. The Courts need to know that either parent being considered is able to provide things such as long term shelter, food, and clothing, as well as a child's freedom to express their emotions, and maintain a relationship with both of their parents. 

As one of their parents yourself, you may feel that you can provide all of these things, and more. However, the Courts will take into account the living circumstances of both parents involved, and determine which one is best suited to be the child's permanent guardian. This can be a complicated process, and it can involve a lot of emotions from all parts, but both the key elements listed above and the role of the child's voice come into this decision as well. 

This can be a very hard adjustment to make, and it's why it's always recommended to speak to a divorce lawyer during these lengthy proceedings. 

Speak with an Edmonton Family Lawyer today regarding your parenting arrangement

Here at Verhaeghe Law Office, our Alberta Family Lawyers have long term experience in assisting families in resolving their divorce needs, as well as any other specific family circumstances, as amicably as possible. Our lawyers know just how hard it can be to come to a mutually beneficial decision when a child is involved, and it remains our priority to ensure their best interests are always placed first. 

We're here to help you help your family, and to settle your child's life as soon as possible after an event like a separation or divorce. To better understand how we can assist with your parenting arrangement, contact our law firm as soon as you can by calling 587-410-2500, and speak directly with a divorce lawyer regarding your child custody arrangements. 

Splitting Up in a Common Law Relationship

Splitting Up in a Common Law Relationship

There are many reasons a couple may choose to not get married. Financial matters, personal issues, long distance, and other factors may all contribute to that decision. Many couples today don’t feel marriage is necessary and would rather retain their independence.

In Alberta, common law relationships, also called adult interdependent relationships, are defined as couples who are unrelated and have been living together for at least three years, or less if they have children together.

Navigating the legal issues surrounding a divorce can be tricky enough, but matters are complicated when the couple splitting up isn’t married.

Are you in a common law relationship and wondering about your rights in the case of a split?

Below are some things to consider.

Property Rights

Couples in common law relationships don’t have the right to division of property as a married couple would. However, through unjust enrichment and joint family venture, a court can determine how much of the property you are entitled to based on a variety of factors beyond simply the monetary contributions you made to the relationship. So, if you were a stay-at-home parent or made less money than your partner, you shouldn’t have to worry about losing all of your property in the breakup of your common law relationship.

Spousal & Child Support

Couples in adult interdependent relationships can make claims for spousal support, and they hold the same rights as married couples for child support under the Family Law Act (as opposed to the Divorce Act used to protect married couples). A judge can order a paternity test for the man in a common law couple. Our lawyers at Verhaeghe Law Office are highly experienced in helping common law partners seek the support they need to maintain their quality of life post-splitting up.

Child Custody

If the common law couple has children, the mother is automatically considered the sole guardian of the child if the father doesn’t claim paternity or make intentions to take care of the child. However, through the Family Law Act, the father can make claims for custodial rights or parenting time. In this case, the matter would be settled in court to determine custody and visitation.

Wills & Inheritance

What happens if your partner passes away without a will? Do you have a right to their inheritance? It depends on if you have children with your partner or not. If you do, you are entitled to 100% of the estate. If you don’t, but your partner had children with someone else, you are entitled to 50% of the estate. However, if your partner did leave a will, you are entitled to whatever they left you.


The last thing you want to think about while in a relationship is the potential of splitting up. But taking a few precautions ahead of time can protect both parties in the case that something goes wrong. For example, you might consider creating a contract or cohabitation agreement that details division of property, alimony, or other factors for which you wouldn’t otherwise have legal protection. Both partners should make sure they have a legal will so they can ensure their estate will be divided according to their wishes.

Contact Verhaeghe Law Office for Your Common Law Relationship Needs

Our lawyers are highly experienced in the nuances of Alberta’s common law relationship and adult interdependent partnership laws. We will defend your rights and work towards your best interests in the case the relationship dissolves. Contact us today at (587) 410-2500 for questions or to schedule an appointment.

Your Complete Guide to Child Custody in Canada

Child Custody
Are there different types of child custody in Canada? Who decides on these arrangements? Here's everything you need to know about child custody in Canada.

For most, divorce is the last thing on their radar. But if you have children, you need to consider what's in their best interest.

And if you want the situation to turn out in your favour, it's best to plan ahead. The average three-day case can cost at least $60,738, and most custody trials go on for at least five to eight days.

Here, we're breaking down everything you need to know about child custody, from the types of custody to factors that affect a decision.

What is Child Custody?

But first, the basics: what is child custody?

Child custody refers simply to the care, control, and maintenance of a child. Most of the time, biological parents have the legal right to make decisions about their child's welfare without question, including their residence, education, religious upbringing, etc.

Usually, parents are not required to obtain this legal right, especially if they are married to each other and are both listed on the child's birth certificate.

However, if the parents disagree over who has the right to make these decisions, or if officials find that the parents are unfit to make these decisions for some reason, the family courts (Queen's Bench or Provincial courts) work with the legal representation of the parents to determine custody arrangements.

Types of Child Custody

Keep in mind, though, that there are several different types of child custody. These include:

  • Sole or full custody
  • Joint custody
  • Shared custody
  • Split custody

Each of these is a subset within physical and legal custody and is determined based on the family situation in question.

Understanding Physical vs. Legal Custody

Before we go into the different types of custody, it's important to understand the difference between physical and legal custody, as the four types of custody listed here can be any combination of physical and legal custody.

Basically, when someone has physical custody of a child, that means that they're responsible for the child's day-to-day care, which almost always means that the child will live with a parent who has physical custody.

Legal custody, on the other hand, refers to the legal authority to make decisions in the child's life, such as education, healthcare, religion, and other concerns.

It is quite possible (common, even) to have one but not the other--parents might share legal custody but not physical custody. In other words, you could have a situation where both parents have legal input but the child only lives with one parent.

With that in mind, let's talk about the different types of custody.

Sole Custody or Full Custody

Sole custody is a term you've probably heard tossed around on TV--usually, one character is demanding that the other grant full or sole custody of their kids.

If a parent has sole custody, the child lives with that parent permanently. That parent also has the right to make all important decisions about the child, regardless of whether the other parent disagrees.

The other parent may still have access rights, though this is at the discretion of the parent with sole custody.

Joint Custody

If sole custody means one parent gets 100% control, then joint custody is a 50/50 split.

Joint custody is a relatively common arrangement in which parents share equal responsibility for the child's welfare. This means they must work together to agree on schedules, decisions, and other shared responsibilities.

Usually, a rotating visiting schedule is created between parents in which the child shares time between the two parents equally.

Shared Custody

Then, there's shared custody, which is similar but not quite the same thing.

Like joint custody, parents with shared custody care for and house their children for roughly equal amounts of time. Important decisions may or may not be shared, but if decision-making is shared, the parents will have to agree on a schedule for visitation.

If they cannot agree, a judge may step in to determine a visitation schedule and the division of parental rights.

Shared custody is preferable over joint custody if:

  • One parent is away from home for extended periods of time
  • One parent is less financially stable than the other
  • One parent is ill, injured, or unable to care for their children

In these scenarios, a 50/50 split provided by joint custody is impractical. Depending on the division created in a shared custody arrangement, child support may be calculated differently.

Split Custody

Finally, there's split custody, which is another variant of joint custody.

Basically, split custody is an arrangement in which custody is split between parents. So, if a family has two children, one child may reside with the mother and the other resides with the father.

Sometimes, this means that the children live permanently with their respective parent. Other times, children may rotate living with each parent in equal amounts.

In such arrangements, parents may still share legal custody, but each parent must have physical custody of at least one child. Either way, both parents must agree on split custody, and they must prove to the court that split custody is in the best interest of their children.

However, it is one of the least common custody arrangements, and courts may not grant split custody over joint custody even if both parents agree that split custody is the best choice.

Parens Patriae

Canadian courts also have parens patriae jurisdiction. This means that the state has the power and authority to protect those who cannot act on their own behalf. In family law, this means Canadian courts can take necessary action to protect children.

This is best explained in an example.

In one case, Johnson v. Athimootil, a court in Ontario accepted jurisdiction over children in Saudi Arabia who previously lived in Toronto, moved to Saudi Arabia, and whose mother returned to Toronto with only one child and had not seen them since.

How is Child Custody Determined?

Now that you understand the various types of child custody, let's talk about how child custody is determined.

Determining Factors

There are a few factors that collectively determine the outcome of child custody decisions in Canada. Above any other factor, the court will always consider the best interests of the children first.

They will, however, take other factors into consideration when determining what the best interests of the children are. This includes:

  • The parent-child relationship
  • Respective parenting abilities
  • The mental, physical, and emotional health of each parent
  • The relative financial stability of each parent
  • The typical schedule of each parent
  • Support systems available to each parent, like the relative help and involvement of grandparents or close relatives
  • Care arrangements prior to separation
  • Any sibling issues
  • The child's wishes

Most of the time, courts prefer to keep siblings together (which is why split custody arrangements are so unusual). However, under some circumstances, the court may consider it necessary to separate the children.

The court will put the best interests of the children above all else when under the age of 18. However, once a child turns 12, their wishes to live with one parent or another is usually respected by the courts.

The past behaviour of a parent will not be taken under consideration in a custody decision.

However, if there are extenuating circumstances which directly reflect on the person's ability to act as a parent, the court will consider them This includes things like substance abuse or allegations of abuse or neglect. Adultery and other marital offences are not sufficient to deny custody.

Who Decides Child Custody?

So, who is ultimately responsible for deciding who gets custody of your kids?

The decision-making power comes from one of two places:

  1. An agreement between parents
  2. The courts

Keep in mind, though, that if parents reach a decision outside of court that both can accept and such an agreement has been put in writing, the court generally won't interfere. This is preferable, as it's far less expensive and disruptive.

However, if parents cannot reach a decision, they may have to ask a court to step in and mediate for them. In making their decisions, courts will consider the Divorce Act, the Family Law Act, the Children's Law Reform Act, and precedents set in other cases.

However, as we said, the court will always consider the best interests of the child first.

Conditions the Courts Favor

However, even with all of these possible considerations, there are three factors that courts usually favour:

  1. A pre-existing arrangement between parents
  2. Whether one parent is full-time or not
  3. Which parent is the primary caregiver

For example, as a rule, courts prefer to grant custody to whichever parent was the primary caregiver before the divorce. This is usually the mother, but it can be the father or even a grandparent.

They will also consider how much time each parent can devote to the children (whether or not a parent works, what their work schedule looks like) relative to their capacity to financially and emotionally support the child.

Child Support

Part of the court's decision has to do with child support, as child support is often determined by the custody decision.

In any custody decision that is some variant of joint custody, especially shared custody situations, a judge will endeavour to set child support amounts to ensure that children in a similar situation are treated the same.

Determining Factors

Now, there are a variety of factors that will determine a child support decision. Our examples will assume the court is making the decision.

First, a court will determine whether the shared custody rule applies. They will primarily consider cost or time as deciding factors.

For example, under child support guidelines, a parent must exercise access to or have physical custody of a child for 40% or more of the time in a year. However, there are several arguments against this rule.

As such, a judge may also consider cost as a deciding factor, which means they must decide which costs are legitimate. However, it is worth noting that child support for low-income mothers is generally inadequate, while child support for high-income mothers often far exceeds their actual need.

Deciding on Child Custody

Once you know all the mitigating factors and the types of child custody available to you, you need to figure out what custody arrangement is best for your children.

You have one of two options: going to court, or working it out outside of court.

Going to Court

In theory, going to court makes it easier, since you argue your case and the decision is taken out of your hands.

In practice, going to court makes everything harder.

Aside from the financial strain that results from a trial, taking your case to court takes a huge emotional toll on your family. Going to court is a valid option if you just cannot agree, but if you can find a way to reach an agreement outside of court, it makes the whole divorce much easier.

Without Going to Court

Outside of court, you have several options to figure out child custody.

One of the main people who can help you through your divorce is a family or divorce lawyer. They can help guide you through the entire process and help ensure the best possible outcome.

In addition, you may also consider working with a family mediator or a therapist. Divorce is a stressful time, especially for kids, and you want your children to feel secure going into this new phase of life.

The Family Lawyer You Need

Central to ensuring a smooth child custody process is a great family lawyer. That's where we come in.

Whether you've lived in Canada for your entire life or you're brand new to this country, we're here to help you make sense of the legal system. Our family lawyers understand and empathize with clients and provide a realistic assessment of your situation.

We have many testimonials that speak to our clients' satisfaction with our services.

If you need to speak with a lawyer, use our contact page to get in touch.