Parenting Arrangements | Making Decisions for Children
Parenting Arrangements
Who decides what parenting arrangements are after a separation or divorce?
When parents separate or divorce, it is best for everyone if they can agree on a parenting arrangement. Where will the children live? How much time will they spend with each parent (called parenting time)? How will the parents communicate with each other? Who will make major decisions about the children?
If the parents cannot work together, there are other processes the parents can try to come to an agreement:
- Collaborative processes are a type of negotiation where each person has their own lawyer but everyone works together to come up with solutions. Everyone signs an agreement saying they will all work together and no one will go to court. Most of the communication occurs in four-way meetings, with both sides and their lawyers present. Everyone is encouraged to be honest and openly share information.
- Mediation is a process where a mediator helps you all work together to come up with a plan that works for everyone. A mediator should be a neutral person and should not take sides. A mediator will not force an agreement on you but can help you come up with an agreement that you both accept. The agreement must be in the best interests of your children.
- Arbitration is a process where you appoint an arbitrator to make decisions instead of a judge. You can choose someone who is very experienced in family law issues. The arbitrator will make a decision that is in the best interests of your children.
- Mediation-Arbitration is a combination of mediation and arbitration. A mediator has the power to make a binding decision (as an arbitrator) if the parties cannot reach an agreement.
Your agreement should be in writing. You can present your agreement to the court as a consent order. This makes the agreement enforceable by the court if someone does not follow the order.
Court is a last resort. If you cannot agree after trying other processes, the court will decide. The court will always make decisions in the best interests of the child.
Last Reviewed: March 2021
What does the law say about parenting after a separation or divorce?
There are two laws about parenting in Alberta: the Divorce Act and the Family Law Act.
The Divorce Act is a federal law that applies the same across Canada. It only applies to married or divorced couples. The Divorce Act sets out the law for divorces in Canada. It also sets out rules for dealing with issues related to divorce (called “corollary relief”), such as:
- decision-making responsibility and parenting of children
- child support
- spousal support
- contact orders (orders granting time with a child to people other than the child’s parents)
- giving notice when moving
Alberta’s Family Law Act is a provincial law that applies in Alberta only. It is for married or unmarried couples. It deals with:
- parenting time
- guardianship
- child support
- spousal and partner support
- contact with a child by someone other than a parent
Married couples can use the Family Law Act when they separate to deal with parenting time, making decisions for children, child support and spousal support. As soon as they apply for a divorce (under the Divorce Act), they must use the Divorce Act to continue to deal with these issues. The Divorce Act and the Family Law Act say similar things about these issues.
Last Reviewed: March 2021
What are parenting arrangements after separation or divorce?
Parenting arrangements after separation or divorce can be whatever the parents or courts believe is in the best interests of the child. Sometimes it will be in the best interests of the child to spend equal time with each parent. Other times it will be in the child’s best interests to spend more time with one parent than the other. Parenting arrangements can be set out in a parenting plan or parenting order.
The parenting arrangements are important for calculating child support.
Last Reviewed: March 2021
Should children spend equal time with both parents?
Neither the Family Law Act nor the Divorce Act say that the child should spend equal time with both spouses. These Acts do say that all decisions about parenting must be made in the best interests of the child. Sometimes it will be in the best interests of the child to spend equal time with each parent. Other times it will be in the child’s best interests to spend more time with one parent than the other.
Last Reviewed: March 2021
What is parenting time?
Parenting time is the time a child spends in the care of a parent. A parent makes day-to-day decisions about the child during their parenting time. This includes time a child is at school or other activities within the parent’s parenting time. Parenting time is set out in a parenting plan or parenting order.
Parenting time is different from the ability to make major decisions about a child.
Under the Family Law Act, the ability to make major decisions is called the responsibilities of guardianship. Only guardians can make major decisions about a child.
Under the Divorce Act, a parent with decision-making responsibility makes major decisions about a child.
The parents can agree on who can make major decisions or the court can decide. Decisions about the ability to make decisions must be made in the best interests of the child, not what the parents want.
Last Reviewed: March 2021
Is parenting time the same as custody?
Kind of. The term custody referred to two things:
- A parent’s ability to make decisions about a child. A parent could have sole custody (ability to make all decisions about the child without the other parent) or joint custody (making decisions with the other parent).
- The time a child spent with each parent. A parent could have residential or primary custody (the child lives with that parent most of the time) or shared custody (the child lives with both parents equal amounts of time).
The old term custody was confusing because it lumped time and decision-making responsibilities together. It is also an emotionally charged term that talks about a parent’s rights with respect to the child rather than the child’s relationship with the parents. Getting custody was seen as winning, while only having access to a child was seen as losing.
We do not use the word custody anymore. Now, parenting time only refers to the time a child spends with a parent. It is separate from a parent’s ability to make major decisions for the child. The term parenting time focusses on relationships with children – a parent’s time with the children. Parents can have equal parenting time or unequal parenting time. The ability to make decisions for a child is called something else – see below for more information.
Last Reviewed: March 2021
What is a parenting plan?
A parenting plan is an agreement about where children will live, how parents will look after the children, and how parents will make decisions about the children. A plan should focus on what is best for the children rather than just what you and the other parent want to happen. A good plan is easy to follow and lets everyone know what is expected of them.
How detailed the parenting plan is depends on the relationship between the parents. Some parents have a good relationship with good communication and so the parenting plan is not very detailed. Other parents do not have a good relationship, so the parenting plan needs to be very detailed. Parents can come up with a parenting plan between themselves or with the help of a professional, such as a lawyer, mediator, or arbitrator.
A parenting plan can be incorporated into a parenting order that the courts can enforce. The court must accept a parenting plan unless it believes it is not in the child’s best interests.
Last Reviewed: March 2021
What is a parenting order?
A parenting order is a court order. A parenting order sets out a schedule for parenting time, who makes major decisions for the child, and how the parents should communicate with each other.
Last Reviewed: March 2021
Can the children decide where they want to live?
Sometimes people think their child can decide where they want to live when they are 12 years old. This is sometimes called the “Myth of 12”. This is NOT true.
Children do not have legal authority to decide where they want to live until they reach the age of majority where they live. And all decisions about children must be made in their best interests, not what the child or parents want.
As children get older and mature, they can make better decisions for themselves. As this happens, parents start giving their children more and more independence and decision-making powers. In the same way, children’s views in court have more weight as they age.
For example, a 9-year-old may want to live with one parent because that parent lets them eat junk food and stay up late. The child is making a decision based on their young age and immaturity. Their decision might not be in their best interests. On the other hand, a 16-year-old might have strong views that reflect their maturity. The court may be more interested in what this child wants.
We say that children have a voice, not a choice. The child’s views are only part of the assessment of what is in their best interests. Whether the parents are working together, or are asking an arbitrator or judge to decide, the child’s views can be considered but are not determinative.
Something else to consider: Sometimes empowering your child to make this decision can also empower your child to make other major decisions. This erodes the important roles of parent and child. And this can backfire on you: if your child can choose to live with you, they can also choose to not live with you when you do something they do not like.
Last Reviewed: March 2021
Making Decisions for a Child
Who can make major decisions for a child?
A guardian or person with decision-making responsibility can make major decisions for a child. Major decisions include those about a child’s health, education, culture, language, religion, spirituality and significant extra-curricular activities.
Last Reviewed: March 2021
Who is a guardian? What are the responsibilities of guardianship?
A guardian handles the care, maintenance and well-being of a child. A child’s parents are usually the child’s guardians, but the court can change who the child’s guardians are.
In Alberta, every child (under 18 years old) has at least one guardian if they are not married and not in an adult interdependent relationship. Most times, a child’s guardians are the child’s parents, but not always. Some children have many guardians at the same time.
The Family Law Act lists the responsibilities of guardianship. They include:
- making daily decisions about the child
- supervising daily activities of the child
- deciding where the child will live
- deciding who the child can have relationships with
- making decisions about the child’s education
- making decisions about the child’s extra-curricular activities
- deciding the child’s cultural and language upbringing
- deciding the child’s religious and spiritual upbringing
- deciding if the child should work and other employment matters
- consenting to the child’s medical treatments
- granting consent when required
- receiving and responding to any notices that a guardian is entitled to receive
- dealing with any legal proceedings relating to the child
- appointing someone to act on the guardian’s behalf in an emergency situation or when the guardian is temporarily absent
- receiving health, education and other information that affects the child
- exercising other powers necessary to carry out the responsibilities of guardianship
Last Reviewed: March 2021
What does “decision-making responsibility” mean in the Divorce Act?
The Divorce Act defines decision-making responsibility as responsibility for making significant decisions about a child’s well-being, including the child’s health, education, culture, language, religion and spirituality, and significant extra-curricular activities.
Only a parent with parenting time can also have decision-making responsibility. However, a parent with parenting time may not have decision-making responsibility. For example, one parent may have parenting time every other weekend but no decision-making responsibility. That parent would not be able to make big decisions about the child, such as where they go to school or whether they play sports.
Day-to-day decisions refer to any daily decisions made for a child, such as food, bedtime, daily activities, etc. The Divorce Act does not define the term. However, the Act does say that a parent who has parenting time can make day-to-day decisions for the child during that parent’s parenting time, unless the court orders otherwise.
Last Reviewed: March 2021
Can the parents make an agreement about parenting and decision-making?
Yes. Parents can come up with a parenting plan between themselves.
A parent should not sign any agreements if you are feeling pressured or forced. You should be sure that you understand what you are agreeing to, and that what you are agreeing to is legal. You can ask a lawyer to review the agreement before you sign it. Once you feel ready to sign the agreement, then both you and the other parent should sign it. You do not need anyone to witness your signature if all you are agreeing to is a parenting plan, but you can arrange for an adult witness if you want.
You can formalize your agreement as a consent order with the courts. If the agreement is made into a court order, then it can be enforced through the courts. You can only apply for a consent order if you and the other parent agree on all the terms that you are including in the order. To get a consent order, you will need to start an action with the courts and may need to pay a filing fee.
Last Reviewed: March 2021
Can a parenting order be changed?
Yes.
If all the guardians agree to change a parenting order, then the guardians can present the new arrangement to the court as a consent order.
If the guardians do not agree on changing the parenting order, then one guardian can apply to the court to change the parenting order. This is called an application to vary the parenting order. To get the order changed, you will have to prove to the judge that:
- circumstances have changed since the original parenting order was made, and
- the changes requested are in the best interests of the children.
The court can decide to change or not to change the parenting order.
Last Reviewed: March 2021
What happens if I have a custody order from before March 1, 2021, not a parenting order?
If you had custody of a child under a custody order that was made before March 1, 2021, you now have parenting time and decision-making responsibility (unless the court says otherwise).
If you were previously married to the other parent and had access to a child under a custody order that was made before March 1, 2021, you now have parenting time (unless the court says otherwise).
If you were not a parent but had access to a child under a custody order that was made before March 1, 2021, you now have contact with the child under a contact order (unless the court says otherwise).
Last Reviewed: March 2021
More Resources
- Parenting Time and Contact (CPLEA publication – available in French and English)
- New Parents (CPLEA publication – available in French and English)
- Making Plans – A guide to parenting arrangements after separation or divorce (Government of Canada)
- Divorce & Separation (Justice Canada)
- Divorce & Separation resources in Alberta (LawCentral Alberta)
- Families Change: Guide to Separation & Divorce – website with info helping kids, teens and parents deal with a family break up