Kids & Parenting

1. What is parenting time?
2. How do I get care and control of my children in an emergency?
3. What happens if my partner also tries to get an interim parenting order?
4. Parenting after Leaving Your Partner
5. What can I do if my partner takes our kids?
6. More Frequently Asked Questions

 

Parenting time is the time that a parent has with a child. During this time a parent has responsibility for the child. They can make day-to-day decisions about the child, unless the court orders otherwise. This includes time a child is at school or other activities within the parent’s parenting time. Parenting time can be set out in a parenting plan or parenting order.

The law assumes both parents have parenting time, unless a parenting plan or parenting order says otherwise. This means your partner or spouse has a right to see your children unless the court or a parenting plan says otherwise. 

The law does not say anything about how much time a child should spend with each parent. Instead, it says that all decisions about parenting should be made in the best interests of the children. Sometimes spending equal times with each parent will be in the best interests of the children. And sometimes spending more time with one parent will be in their best interests.

Parenting time is different from the ability to make major decisions about a child. Under Alberta’s 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 Canada-wide Divorce Act, a parent with decision-making responsibility makes major decisions about a child.

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Is parenting time the same as custody?

The Divorce Act used to use the term custody to talk about legal guardianship of the children of a marriage. Custody referred to a parent’s time with a child and ability to make decisions for the child. Now we use parenting time to talk about a parent’s time with a child, and decision-making responsibility  or responsibilities of guardianship to talk about a parent’s ability to make significant decisions for a child.

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Why is planning ahead important?

It is very important to deal with the issues of parenting time and making decisions for a child immediately. Both parents have rights and responsibilities with respect to the children, unless a parenting plan or parenting order says otherwise. If you do not let your spouse or partner see the children without a court order or plan in place, your spouse or partner may accuse you of kidnapping the children.

If you can, prepare before you leave, such as by talking to a family law lawyer.

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• The court can make an interim parenting order on very short notice, sometimes within 24 hours.
• When making a decision about parenting time and decision-making responsibility, the judge will look at what is best for the children. Be prepared to show why it would be best for the children to be with you.

If you do not get an interim parenting order and you do not let your spouse or partner see the children, you might be charged with kidnapping (criminal abduction) of the children. To avoid possible criminal charges, get an interim parenting order as soon as possible after leaving.

Getting an Interim Parenting Order 

An interim parenting order is almost always done by applying to a judge using affidavits. It is very rare for a judge to hear from witnesses when deciding interim parenting arrangements. You, through your lawyer, must give notice to your spouse of your application for an interim parenting order and give your partner and their lawyer a chance to respond.

The judge hearing an application for an interim parenting order will want to know:

• basic information like the names and ages of the children
• any special needs or health concerns the children have
• who has been the primary caregiver for the children up until now
• the basic facts of the marriage breakdown and why living together is no longer possible
• your proposal for where you and the children will live
• childcare or after school care arrangements if necessary
• financial details about how you and the children will live
• the children’s extracurricular, school, sports and community activities and any special relationships with extended family and how these matters may be least disrupted for your children, and
• any other important factors that will have an impact on the best interests of your children.

All of this information will be put by your lawyer into an affidavit and you will be asked to swear that it is true.

If your partner disagrees with your application for an interim parenting order, then they will probably swear an affidavit setting out the facts as they see them. It might be different than the things you say in your affidavit. Your partner’s affidavit will also be filed at the courthouse.

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If you both want interim parenting time with your children and file affidavits, your lawyers will schedule an Appointment for Questioning. This is a question and answer session held under oath, held in one of the lawyer’s offices. A court reporter is present to make a record of everything that is said. The record, called a transcript, can then be referred to by both lawyers and the judge when your case goes to court for a hearing. It will help to clarify the facts involving the family situation and will help the judge decide interim parenting.

For interim parenting, the judge considers “the best interests of the child”. This is what a judge thinks about when making an order at the time of a divorce, too. It means that the judge will consider what is best for the children in your particular family, taking into account things like:

• where and with whom the children have been living
• closeness to schools, friends
• extended family and extracurricular activities
• special health care needs, if any
• the children’s ages and their relationship with each parent
• daycare and after school care arrangements, and
• many other factors.

The judge tries to look at the whole picture of the children’s lives and decide what is best for the children.

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Parenting after Leaving Your Partner

If you get an interim parenting order, it is temporary. This means you will have to find a long-term solution to parenting the children. In a situation where the parents cannot agree about parenting arrangements, or where one party fears for the safety of the children, a judge may have to make the decision.

The creators of this website, the Centre for Public Legal Education Alberta, has a booklet about Parenting Time and Contact, available for free online. This booklet can provide you with an overview of some of the options you might want to consider.

Parenting decisions can be very complex. It will be very helpful to get legal advice from a lawyer who practices family law.  For help getting legal advice visit our Get Legal Advice Section.

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What can I do if my husband or partner breaks the parenting order? 

You can immediately go back to the court for help. The court can order the police to enforce the order. It is very important that the terms of the order be specific and very clear, so that there is no confusion. The police will also need very clear evidence that the order has been breached. Keep records and get help from witnesses.

If someone resists or disobeys enforcement of a parenting order, they can be fined or sent to jail. The children will be returned to you if they were taken away when the order was broken.

What if my husband kidnaps the children and takes them to another province even though I have a parenting order?

If your children are abducted, you can report it to the police. The police can then file a missing persons report and lay charges against the abducting parent. Response to an abduction charge may be faster than enforcing a parenting order. If your husband has broken the terms of a parenting order, you can also try to get the order enforced in the other province.

Once abduction charges are laid, a Canada-wide warrant is issued for the arrest of the abducting parent. This means that the child(ren) may be found and returned more quickly. The court in the province where the children have been taken may require proof of your Alberta parenting order. This procedure may take some time.

What if my husband kidnaps the children and takes them to another country?

If the children have been taken abroad, it may be hard to bring them back. It depends which country they are in. Some countries have signed an international treaty and will recognize and enforce parenting orders made by courts in other countries if the children are not too settled or will not be returning to a harmful situation.

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What happens if I take the children from home with me to live in a shelter? 

There are two possible courses of action that your husband or partner might take using criminal law or family law.

• He might make a complaint to the police that you have abducted the children.
• He might start a legal action for parenting time of and decision-making responsibilities for the children.

This is why it is important to deal with the issue of parenting as soon as possible.

How can I be accused of abducting my own children?

The law says that where there is no parenting order in existence, it is an offence for one parent to take children under fourteen years of age from the other parent with the plan of keeping them away from him. If you hide the children so that they are not available to their father, there is a possibility that you will be charged.

Removing the children could also be an offence if it is against the terms of a parenting plan that already exists.

There is, however, a defence to any possible criminal charge. If you can show that you took the children away because the children or you were in immediate danger of being harmed, then you may be able to resist criminal charges. If you can show that you honestly believed such a danger existed, you can likely oppose charges.

How can my partner apply for care and control of the children when he is threatening to harm them?

Even when parents separate physically, they both still have equal rights to their children until a court order says differently.

How can I show that I believed the children or I were in danger of being harmed?

It is extremely important to have proof to back your claim. If you are in an abusive situation, try to make some plans before you leave. Keep a record of when and how you or the children were abused. If you or the children are seeing counsellors because of the abuse, keep records of this also.

It will also be useful if there are any witnesses to the abuse. Even though you may think it is taking place in private, your friends and family may notice more than you think. Try talking to them to see if they can help.

Do I need a lot of money for a lawyer in order to get care and control of my children?

There are ways to get legal assistance when you have limited finances.

• You may be eligible for Legal Aid. Legal Aid is a fund that will subsidize your legal costs depending upon how much money and property you have.
• You can discuss payment with your lawyer. He or she may be willing to charge a lower fee or let you pay by installments.
• If you are planning to leave an abusive situation, it is a good idea to put some money in a secret emergency fund that you can use when you leave.

Do I have to let him see the children even though he has threatened to kidnap them?

Children should spend as much time with each parent as is in the children’s best interests. Sometimes it is in the child’s best interest to spend more time with one parent and less with the other. When deciding what is in the child’s best interests, the court considers whether there is family violence and the impact of it on the children.

If you fear for the safety of your children, you will have to tell your lawyer so that they can ask the court that special terms be written into the parenting order. Examples of terms that could be requested are

• the other parent’s parenting time is supervised by someone like a social worker, or
• specific times and places for the other parent to exercise parenting time.

It is very important that the terms of the order be specific and very clear. This is so there is no confusion if the order is broken and it has to be enforced.

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