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Child Custody & Access

SBL - Children's Issues

Custody refers to decision making and responsibility for the children. Parents may have joint custody, meaning they are both involved in decision-making for the children, or one parent may have sole custody, meaning s/he has all of the decision-making authority. Even where parents have joint custody, the children may live primarily or totally with one parent.

Access also referred to as parenting time, is the schedule of where the children will reside on a day to day basis. A plan is typically developed by the parents for the day-to-day care and visiting or access arrangements for the children when the parties are no longer living together.

In Alberta, matters relating to the custody and access of children are dealt with by the Court of Queen’s Bench or the Provincial Court under the Divorce Act, Family Law Act, or Child, Youth and Family Enhancement Act.

In making an order for custody or access under the Child, Youth and Family Enhancement Act, the courts must have regard to the best interests of the child, and must consider the preservation and support of the family as the basic unit of society; the importance of stable, permanent and nurturing relationships for the child within the extended family and close community, familial, cultural, social and religious heritage groups; the opinions of the child who is capable of expressing such; the mental, emotional and physical needs of the child; as little delay and disruption as possible to the child; protection of the child from family violence; and available community services and intervention services.

Under the Divorce Act and Family Law Act, the court’s only consideration is the best interests of the child, which includes ensuring the greatest possible protection of the child’s physical, psychological and emotional safety and consideration of all the child’s needs and circumstances. A consideration of the child’s needs and circumstances shall include: 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; 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 would apply; the ability and willingness of each person in respect of whom an order 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.

In determining the appropriate course when one parent expresses a desire to relocate with the children the courts must determine what custody arrangement now accords with the best interest of the child. This is the sole consideration, meaning that the interests and aspirations of all others, including the parents, assume a subsidiary role. There is no presumption in favour of the custodial parent on mobility issues.

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