With separation or divorce come mixed emotions, confusion and an array of unfamiliar legal terms. Understanding which laws apply to parenting in these circumstances is tricky enough without having to learn a whole new vocabulary!
In this article, we explore both the laws and the terminology that apply to parenting after separation or divorce. Better yet, we lay it all out in plain language.
Which laws apply to parenting?
The nature of a couple’s relationship determines which laws and terms are used. In Alberta, both the federal Divorce Act and the provincial Family Law Act govern parenting. However, a couple’s relationship determines which law applies. The Divorce Act applies only to those who have been legally married. The Family Law Act, on the other hand, can be used if you were married or unmarried.
If you are going to make an application to the court, you should determine which law you will use. This determines which level of court to use. If using the Divorce Act, you must make an application to the Court of Queen’s Bench, the higher court in Alberta. If, instead, you use the Family Law Act, your application can be heard in either the Provincial Court or in the Court of Queen’s Bench.
Which legal terms explain parenting?
Although both the Divorce Act and the Family Law Act govern parenting, each uses specific vocabulary to define the relationship between you and your children. The Divorce Act uses the terms custody and access, whereas the Family Law Act uses guardianship, parenting and contact.
Under the Divorce Act
- Custody refers to the ability to make decisions regarding the children and where they live. Custody can be arranged in a number of different ways, as explained in our companion article Parenting arrangements and child support.
- Access refers to time children spend with a parent who does not have custody. Parents with access to children have a right information about the children. However, they do not usually have a say in major decisions regarding their children.
Under the Family Law Act
- Guardianship refers to an adult who is responsible for the care and well-being of the children. In Alberta, all children under the age of 18 have a guardian unless they have married or become an adult interdependent partner.
Alberta law does not use the term common-law to describe people who live together but who are not legally married. These relationships are called adult interdependent relationships.
Children can have more than one guardian at the same time. Although both parents are usually guardians of a child, a guardian does not have to be the child’s parent. An adult who has had care and control of the child for more than six months can apply to be a guardian.
- Even after a relationship or marriage breaks down, it’s important for children to continue to have significant relationships with family members. Contact refers to time children spend with someone who is not a guardian. Although he or she gets to spend time with children, this person cannot make decisions for them and is not responsible for the children’s well-being. Contact usually refers to in-person visits, but it can also include non-physical contact such as contact by phone, via email or through other means such as Skype or FaceTime.
- Parenting refers to the agreement that defines where your children will live, how you and the other guardian(s) will look after them, and how you will make decisions for them. This is discussed in our companion article Parallel parenting plans. An effective parenting plan should focus on what is in the children’s best interest and not on what you and the other guardian want. Similarly, good parenting plans are easy to understand and clearly identify expectations.
At Lift Legal, we understand how confusing family law can be. Whatever your family law needs, our experienced lawyers are available to explain complex terminology, outline court procedures and give you sound advice. Contact us if you need help to draft a parenting plan, resolve disputes or make final decisions regarding your arrangements.
The information on this blog and website is provided by Lift Legal for educational purposes only. It is intended to give readers a general understanding of the law, not to provide specific legal advice. Information contained in these pages should not be used in place of competent legal advice from a licensed, practising lawyer in Alberta. Furthermore, by using this blog and website, you understand that no lawyer-client relationship exists between you and Lift Legal.