When couples get married, no one plans to divorce. Yet, in 2021, 7.4 million people obtained a legal divorce in Canada. Although divorce is a common occurrence, it is a stressful one, especially when children are involved.
Our goal at Spectrum Family Law is to make this difficult transition as smooth as possible. We aim for you to have a clear understanding of the systems in place so that you can best protect and care for your family.
Do unmarried fathers have the same rights as married fathers in Canada?
Couples who live together and have children together, whether married or not, are considered to be joint custodians in Canada.
If and when the parents decide to separate (or if the parties have never lived together and decide to no longer see each other) legal difficulties may arise involving parenting, child custody, and child support.
Generally, an unmarried parent who has the care and control of the child is considered the sole custodian without having to go to court. This is usually the mother of the child. A court may order otherwise if there is a child custody case to be heard.
Within a marriage, the parents of the child are considered to be the spouses. Also, a male is generally presumed to be the father of a child in the following situations:
- He married the mother after the birth of the child and has acknowledged that he is the father
- He lived with the mother for one year, the child was born during that year, and he has acknowledged that he is the father
- He lived with the mother for at least one year and separated from the mother less than 300 days before the child was born
- He is registered as the father under a provincial Act at the joint request of himself and the mother
- A court order states that he is the father
An unmarried father may need to prove paternity before claiming parental rights and child custody. Without this, the father may have no say in the upbringing of the child.
How can I be sure my parenting plan complies with the law?
A parenting plan details how parents who are not living together will raise children under 18 years of age. If you are managing or developing a custody agreement, it is crucial that you write a clear and concise parenting plan. A parenting plan is just one tenet of a custody agreement. To guarantee that your parenting plan meets legal standards, you must refer to Alberta’s Family Law Act.
Alberta’s Family Law Act promotes the well-being of families and children after a divorce or separation and simplifies Court procedures. The Act details the information you will need to construct a legally sound parenting plan and custody agreement. Considering your “child’s best interests” (as defined in Alberta’s Family Law Act) will greatly increase your chances that the Court will accept your parenting plan.
It’s crucial that your parenting plan includes factors like the age of the child and how the plan might change as they grow. There should be enough detail for the plan to be logistical and practical but enough flexibility for it to be realistic. The parenting plan does not need to be written in legalese. Simple, yet detailed language is best when determining how the child’s time will be divided and the factors that contribute to this decision.
In Alberta, what factors determine “the child’s best interests”?
The “child’s best interests” should be at the core of any parenting plan or custody agreement. These criteria are defined by Alberta’s Family Law Act in order to best protect and benefit the children involved in these agreements. According to the Act, these factors are used to determine a child’s best interest.
While there is no required formatting, the following criteria should be clearly stated and explained in your parenting plan:
- A plan for protecting the child’s physical, psychological, and emotional safety. Any special needs and accommodations for the child should also be stated.
- The state of the child’s overall well-being and a history of the care and parenting the child has received
- Any history of family violence and what impact it had on the child and other family members
- The child’s cultural, spiritual, religious, and linguistic background
- The child’s custody views and preferences, as long as they are of age and maturity to express and understand said preference
- An expression of why the child should or should not maintain relationships with both parents or guardians
- The ability of each parent to provide care and basic needs to the child
- The communication style of the parents and whether they are able to communicate effectively with one another and compromise on issues with the child
- Any relevant legal proceedings that may have had an impact on the child
Learn More → Family Law Legislation in Alberta
WHAT SHOULD MY ALBERTA PARENTING PLAN /CUSTODY AGREEMENT INCLUDE?
To make the custody process as seamless as possible, you should include the following information in your custody agreement/parenting plan:
- A detailed schedule that clearly states how each parent will divide their time with the child. Remember to include holidays and vacation times.
- A plan for how parents will share parenting responsibilities.
- A strategy for dispute or conflict resolution.
- Any other information that details how the best interest of the child will be maintained.
IN ALBERTA, WHAT ARE THE ROLES AND RESPONSIBILITIES OF GUARDIANS?
Guardians must maintain the following roles and responsibilities, while upholding the best interests of the child, as outlined in Alberta’s Family Law Act:
- Prioritize the child’s well-being. This includes emotional, physical, and psychological welfare.
- Ensure that the child has necessities, such as food, medical care, shelter, and clothing.
- Make daily decisions in relation to the well-being, health, welfare, and care of the child.
- Determine the child’s primary place of residence.
- Make decisions pertaining to the child’s education and extra-curricular activities.
- Decide how to raise the child in relation to lingual, religious, and cultural aspects
- Dictate who the child lives with and who the child associates with when asked for a guardian.
- Consent to medical treatment of the child.
- Handle the child’s legal matters.
- Appoint a trusted person to act on behalf of the child in case of an emergency or illness.
- Receive and distribute information pertaining to the child’s health, education, etc.
HOW DOES BEING MARRIED OR UNMARRIED AFFECT GUARDIANSHIP IN ALBERTA?
Most Alberta parents are automatically entitled to guardianship of their child. However, there are certain laws that may affect guardianship, depending on the following circumstances:
- Parents who are married, regardless of the timing in relation to the birth of the child, are automatically guardians of their child and will remain as such unless the Court overrules it.
- Single mothers are granted guardianship of the child automatically because maternity is easier to determine than paternity.
- Single fathers do not automatically possess guardianship. They must meet the following criteria to be considered automatic guardians:
- The father must have cohabitated with the mother for a minimum of 12 months during the timeframe that the child was born.
- The father must have lived with the mother on some permanent level when the child was born.
- Single parents meeting at least one of the above qualifications will retain their guardianship of the child even if they no longer live with or have a personal relationship with the other parent.
- Single parents who have not lived together as previously described are still individually entitled to guardianship of their child, but may or may not retain guardianship depending on the living arrangements of the child and the parenting agreements in place.
- Once a child has lived with a parent for a year, permanent guardianship is established.
- It is possible for both parents to retain guardianship even if the child lives primarily with one of them.
- Parents without permanent guardianship, and other third parties such as grandparents, may apply for an appointment through the Court.
Can parents let the Alberta court decide the custody arrangements?
It is highly favorable for parents to come up with their own agreement without relying on the Alberta Courts. This is why parenting plans and custody arrangements are required parts of the process. However, it is feasible to petition the Court to devise a plan if absolutely necessary.
If an agreement cannot be reached, even after attending mediation, the Court will intervene. However, these plans are usually not in the best interest of the child, since the Court is only privy to the information provided and does not know the child personally.
If a parenting plan is submitted with disputes, the Court will act as the decision maker. Under Alberta’s Family Law Act, guardians are required to cooperate with each other on child-related matters. It is imperative that you do everything you can to work together when drafting a custody agreement.
A mutually-agreed-upon parenting plan will usually become a parenting order by the Court. Working together to create a fair and balanced parenting plan will be in the best interest of the child and everyone involved.
Contact an experienced Alberta parenting plan and custody agreement attorney today
Nothing is more important than the health and well being of your children. The knowledgeable team of lawyers at Spectrum Family Law can help you craft a parenting plan that meets the unique needs of your family.
We currently have three offices across Alberta — Edmonton, Calgary, and Red Deer. We serve the entire province of Alberta (and BC). We also have the infrastructure to work with any of our clients virtually — even the furthest regions of Alberta.
We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take as well as what to expect moving forward. That’s the best way to schedule an appointment
Our offices are generally open 8:30 a.m.—4:30 p.m., Mon—Fri.
Allison provides a balanced approach to family law files and strives to help families in the midst of separation and divorce. She has a wealth of experience in litigation including appearing in trials, Special Chambers applications and case conferences.