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.

Splitting Up in a Common Law Relationship

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.

Precautions

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

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.