Divorcing with minor children can be a harrowing experience. If you’re feeling fearful or stressed about what your custody and child support arrangements will look like when the divorce is complete, then turn to us. The team at Merchant Law is ready to help.
We will do everything in our power to help you protect both your children and your relationship with your children. Fortunately, federal law and provincial law both tend to make it very difficult to take your children away from you. Here’s what you need to know.
What custody arrangements are available in Alberta?
In most cases, both parents will have joint legal custody: the right and ability to make decisions for and about the child. These decisions include educational decisions, religious decisions, and medical decisions.
Joint physical custody or shared custody is the most common custody arrangement in Alberta. Each parent gets to spend at least 40% of their time with their child. Courts prefer these arrangements to get as close to 50/50 as possible, as it is well established that spending time with both parents is usually in the best interests of the child.
A split custody arrangement is a rare arrangement in which there are multiple children. In these arrangements, some children live primarily with one parent, while the other children live primarily with the other parent.
Sole physical custody is very rare. It is usually only awarded in cases where the parents live very far apart, making joint physical custody impossible, or in cases where one parent can provide evidence that the other parent is a danger to the child. This evidence could rely on a history of family violence, on alcohol and drug abuse, on incarceration, or on some other factor.
Suing for sole custody without the appropriate evidence can backfire on you. Courts look to the willingness of each parent to foster a relationship with their children. If you seem to be trying to prevent the other parent from fostering such a relationship the judge may award custody to that parent, instead. We will help you determine if you have enough evidence to make your case. If you know no evidence exists you should be turning your attention to negotiating a co-parenting agreement you both can live with.
When shared custody is impossible, the other parent will be awarded access, or visitation time. The amount of time will depend on the best interests of the child. If the parent is found to have been a danger to the child in the past, then the courts may require this time to be supervised.
You will need to use an approved supervised visitation provider. These are paid professionals who are adept at helping to foster relationships between parents and children in supervised environments. Your divorce order will spell out which parent must pay for this service.
Who pays child support in Alberta, and how much?
If one parent has sole physical custody then the non-custodial parent pays an amount based on their own income and the number of children. The amounts are laid out in the Federal Child Support Guidelines. The amount may not go below what is permitted under these guidelines, but you may negotiate a higher amount if there are grounds to do so.
If parents have shared custody then the courts look at the amount both parents would have paid had there been a primary physical custodian. The higher earning parent then pays the difference to the lower earning parent.
What is reasonable access?
When joint physical custody isn’t possible the non-custodial parent will be awarded access, or visitation.
Reasonable access means that access is flexible and parents can decide on a schedule. There is no strict definition for what is “reasonable” as it will depend on the parent’s unique situation and family structure, as well as the best interests of the child.
Specified access means there is a court-ordered schedule in place. This is used in cases where parents are unable to agree on their own co-parenting schedules or terms.
Conditional access means that there are specific conditions on access, such as an ex’s new significant other being prohibited from visiting with the child, or the prohibition of alcohol or drug abuse during a parent’s visit.
Supervised access means the parenting time or visitation must be overseen by a professional.
Can one parent deny access to the other?
Parents may not deny access for any reason. If they believe there is a danger to the child they must take the matter to court right away. It is especially worth noting that you cannot deny access simply because the other parent failed to pay child support. The two issues are decoupled in Alberta.
Keep in mind that children cannot refuse to see parents; you will be responsible for making sure they make the visit. However, if the other parent fails to exercise their access or visitation time that is not something you are going to be responsible for.
Can grandparents sue for custody in Alberta?
Any adult who has lived with a child for six months or more can apply to be named a guardian, and any guardian may sue for custody. While it is rare for grandparents to achieve custody of their grandchildren it has happened.
Grandparents who have not lived with the child for six months or more may be able to apply for contact instead. Contact means that they have the court-ordered right to contact the child. This can be electronically, over the phone, or face to face as the parents allow. Courts recognize that it is rarely in the best interests of the child to cut them off from their grandmothers and grandfathers.
Get Help Today
We understand that going through a custody or child support case can be extremely stressful. Fortunately, our family law team has over 20 years of experience helping parents just like you. We will fight hard to either protect you and your children from an abusive parent or to protect your relationship with your children by crafting a co-parenting agreement both of you can live with.
Call (403) 237-7777 today to schedule an appointment with one of our highly qualified divorce lawyers.