*Written by: Bailey Curtis, Edmonton Family Network
In Alberta, parents often believe that they have “the right” to have access or parenting
time with their children. However, parents only have the right to apply for a parenting or
access order, guardianship or other relief concerning their children.
The Honourable Court does not have Acts, rules or regulations for “parental rights.”
Parents can apply for their desired rights to their children under the Divorce Act
(Canada) if they were married, or under the Family Law Act in parent-child situations
that meets the criteria in the Act. However, after heading into court after filing a Notice
to Attend Family Docket Court, Family Law Application or Claim-Family Law Act, the
Honourable Court will only make a decision for the children after considering the best
for the children.
How does the Court decide what’s in the best for the children?
Section 16(3) of the Divorce Act (Canada) and Section 18(1) of the Family Law Act set
out a list of factors that the Honourable Court will review and consider when trying to
figure out what is in the best interest of the child. The respective lists include many
factors such as the child’s physical, psychological and emotional needs and need for
stability, the child’s age and stage of development, the history of care, cultural,
linguistic, religious and spiritual upbringing and heritage, the child’s views and
preferences when it’s appropriate to consider them, the plans proposed for the child’s
care and upbringing, any family violence, etc.
What does this even mean?
The Honourable Court considers things from the child’s perspective.
The child has “the right” to be financially supported by both parents and the child has
“the right” to have a relationship with both parents.
The child’s right to a relationship with both parents does not mean that the child is
entitled to equal time with both parents. How much time a child should spend with each
parent is usually the big decision that the Honourable Court is asked to decide in family
court when the parents are unable to agree on a parenting plan without court
intervention.
The Honourable Court is well aware that not all family dynamics are happy and healthy.
Some children have “the right” to child support from someone who will never pay, and
some children have “the right” to know a loser that does not deserve to call themselves
a parent.
What should you take from this?
Parents that are in a messy co-parenting situation should not launch a court application
without adequate support and preparation. First things first, parents should establish a
support network of friends, family, support workers, lawyers and paralegals to help with
the overwhelming task of giving the “full picture” to the judge. Establishing the “best
interest of the child(ren)” requires an in-depth analysis of various factors – and failing to
provide enough information could lead to an undesirable outcome in family court.
The Edmonton Family Network was designed to be used as a resource to anyone
dealing with a difficult family situation. The Edmonton Family Network aims to educate
and connect people with exceptional service providers to help build a strong support
network for people in high-conflict or complicated family situations.
Edmonton Family Network has connections to legal service providers and
community support services.
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