EDITOR’S NOTE Canada’s Divorce Act changed on March 1, 2021. The information in this article may be out-of-date. For current information on family law, see CPLEA’s Families & Relationships Resources.
I recently received this question: How can I get sole custody of my four-year-old son? I don’t have a relationship with the father, and we were never married.
Let’s talk about terminology first, so that if you have to meet with a lawyer, you’ll both be on the same page. “Custody” means the ability to make decisions about a child. For example, if the parents share custody of a child, then each parent gets to make decisions for and about the child. Custody is a term that is used in the Divorce Act. The Divorce Act only applies if the child’s parents were married. So, if you weren’t married and the child was born in Alberta, then the law that you want to know about is the Family Law Act (FLA). Just to make things more confusing for people, the FLA does not use “custody” at all. Instead, the FLA uses the terms “guardianship” and “parenting order.”
Generally speaking, the parents are guardians of the child. There are certain powers/ responsibilities that are given to guardians (and you can read about them at section 21(5) and (6)). For example, guardians have the power to make day-to-day decisions for the child, to approve medical decisions, where the child will go to school, etc.
Guardianship can be revoked (section 25(1)), but it is extremely rare for a court to do so. Instead, the court may use parenting orders to give certain rights to one guardian, and not to the other. For example, a judge can order that one guardian is to have control over certain decisions relating to the child, and the other guardian only the power to know about those decisions (but not have any input on the decisions). Also, the court can set down a parenting schedule, and make decisions on when and how the guardians can have contact with the child. In other words, judges tend to think that it is in the child’s best interest to have both parents as guardians. So, instead of completely removing one guardian, the judge will usually try to create an order that fits best with the circumstances. This isn’t to say that a guardian won’t ever be removed, just that the circumstances under which that would occur are limited (for example, in cases of neglect or abuse).
The other issue that is very important to know about is that the judge will only make an order if the judge believes that it is in the child’s best interest to do so. The “best interests of the child” is the legal test for all orders that relate to the child. So, this means that the judge will look at all of the evidence in front of him/her and then ask, for example, “is it in the child’s best interest for me to remove this person as a guardian of the child?” The FLA sets out factors that determine the best interest of the child at section 18.
Now, if you already have an order that deals with guardianship and parenting time, then you would be making an application to vary the order that already exists. This means that when you go before the judge, you have to prove that there has been a change in the needs or circumstances of the child since the time the last order was made. So, if a “big” event has happened in the life of the child, and the parenting order no longer works, then the judge would have to decide whether or not it is in the best interests to vary the order, given the “big” event that happened. A common example is when one parent wishes to move to another province with the child, and so makes an application to change the parenting order that is in place so that the child can move with him/her. There is a kit that has all of the paperwork that needs to be completed to make a variation order.
If you do not already have a parenting order, then you would be making an application for a parenting order. You can find the paperwork online.
There are other options that you may want to consider. You can try to negotiate with the other side on your own. If you can negotiate an arrangement that you can live with, then you can simply put this in writing, and both keep a copy. You do not necessarily have to formalize it into a court order, but you can if you want.
You may also want to consider mediation. If you’ve never been involved in a mediation before, it’s basically a chance for both sides to sit down with an impartial 3rd party and talk about what they want to happen in the future. There is no pressure to reach an agreement, but if you are able to, then the mediator will usually write it out, and can explain how you can make it into a court order.
The Edmonton Law Courts Building also has the Family Law Information Centre and you may want to talk with a worker there. They have all of the forms needed to make an application and can explain the different avenues available for you to use, in the courts and outside of the courts.
All of the above assume that you are going to be dealing with this issue on your own. You could also choose to hire a lawyer. Many firms offer free consultations, which means that you can sit down with the lawyer and talk to them for a half hour or hour for free. Then you decide if you want to hire that lawyer. You can simply call some law firms to see if they offer the consult for free. If you know someone who has used a family lawyer in the past, then contact them and see if they would recommend that lawyer. If not, then you can simply do an Internet search for family law lawyers in the area where you live and go from there. There is also the Lawyer Referral Service, which you phone into at 1-800-661-1095, and you will get the names and contact info of three lawyers. You then call them and set up the appointment yourself and you automatically receive a free half-hour consultation. Other provinces may have similar lawyer referral services.
For more information about the FLA, you can go to this Alberta government website.