Alberta custody: factors to determine a child’s best interest

On behalf of Gary Kirk of Kirk Montoute Dawson LLP posted in Family Law on Monday, June 20, 2016.

Today we continue our discussion of the laws governing child custody and parenting time for Alberta families in separation and divorce. As we explained in a recent post, both federal and provincial laws require that all court decisions in Alberta concerning custody, parenting and access be made after careful consideration of the child’s best interests.

First, we will clarify the difference between the federal Divorce Act and the Alberta Family Law Act, which has been in effect since October 2005. An Alberta lawyer can clarify the ways in which the two laws govern in any particular situation, but in general, the federal law applies to custody and support issues in a divorce and the provincial law fills in when issues of child custody arise outside of divorce.

Examples of such situations outside of divorce include when parents are unmarried and either living separately or in an adult interdependent partnership.

The Alberta act says that for a court to determine a child’s best interests, it should “ensure the greatest possible protection of the child’s physical, psychological and emotional safety” and “consider all the child’s needs and circumstances.” The Act contains a specific list of factors for the court to contemplate:

• The child’s “physical, psychological and emotional needs,” including the need for stability
• The child’s care history
• The child’s “cultural, linguistic, religious and spiritual upbringing and heritage”
• The child’s opinion and preferences
• Proposals for the child’s care and rearing
• Family violence
• The relationships between the child and everyone who lives with that child, who is significant in the child’s life and who would be controlled by the custody or parenting order (usually the parents)
• The parents’ ability and willingness to care for the needs of the child and to “communicate and co-operate” about the child’s needs
• The benefit of the parent-child relationships, considering the current views of the parents or other guardians
• Parental ability and willingness to act fully as guardians
• Other legal proceedings that are relevant to the child’s “safety or well-being”

While this list under Alberta law generally applies to parental situations other than divorce, all of these factors would certainly be relevant to a judge making a custody decision under the federal Divorce Act, which requires that the child’s best interest be determined more broadly in light of the “condition, means, needs and other circumstances of the child.”