child custody and parenting in partnership with the edmonton public library updated november 2013 1
TRANSCRIPT
1
Child Custody
and ParentingIn partnership with the
Edmonton Public Library
Updated November 2013
2
Agenda
1. Introductions
2. How this evening’s presentation will proceed
3. Housekeeping – washroom locations
4. You have three things in front of you:
1. A copy of this PowerPoint
2. A resource sheet
3. A feedback form that we ask that you fill out before
you leave tonight to help us improve these sessions.
Child Focused
Legal TermsChoosing
Which Court“Best
Interests”Parenting
PlansCourt
ProceedingsOther Topics
3
Disclaimer
The information presented during this session
may have limited application to your particular
situation. The lawyers who are here this
evening CAN provide legal information that
may give you a greater understanding of how
the law might apply to your own situation. The
lawyers who are here this evening CAN NOT
provide you with individual legal advice.
Child Focused
Legal TermsChoosing
Which Court“Best
Interests”Parenting
PlansCourt
ProceedingsOther Topics
4
Legal Assistance1. Legal Aid – (780) 427-7575
2. Student Legal Services – (780) 492-8244
Law students
Simple support/variation applications; Substituted service orders; Do Your
Own Divorce Clinics
3. Duty Counsel
Provincial Court – Courtroom 441
Court of Queen’s Bench – Courtroom 314 and 612
4. Limited scope retainer
5. Pro bono legal services
6. Summary legal advice (where available)
Child Focused
Legal TermsChoosing
Which Court“Best
Interests”Parenting
PlansCourt
ProceedingsOther Topics
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Contents
A. Take a Child Focused Approach
1. Parenting After Separation
2. Other Workshops
3. Mediation
B. Legal Terms
C. Choosing Which Court
D. “Best Interests”
Child Focused
Legal TermsChoosing
Which Court“Best
Interests”Parenting
PlansCourt
ProceedingsOther Topics
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Contents
E. Parenting Plans
F. Court Proceedings
G. Other Related Topics
i. Mobility
ii. Variation
iii. Appeals
Child Focused
Legal TermsChoosing
Which Court“Best
Interests”Parenting
PlansCourt
ProceedingsOther Topics
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Resolving Issues Out of Court
Child Focused
Legal TermsChoosing
Which Court“Best
Interests”Parenting
PlansCourt
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A. Take a Child Focused Approach
How a child reacts to their parent separation
will depend on age, level of emotional
development, attachment or relationship
history, and most importantly, how
respectful the parents are toward one
another.
Child Focused
Legal TermsChoosing
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A. Take a Child Focused Approach
In most cases, children want to spend time
with both parents.
It is generally in a child’s best interest to have
time with both parents.
Child Focused
Legal TermsChoosing
Which Court“Best
Interests”Parenting
PlansCourt
ProceedingsOther Topics
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1. Parenting After Separation
No-cost, 6-hour workshop
Helps parents understand process and
effects of separation
Encourages positive choices by parents
about how to continue to parent after
separation
Mandatory attendance for Queen’s Bench
Child Focused
Legal TermsChoosing
Which Court“Best
Interests”Parenting
PlansCourt
ProceedingsOther Topics
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1. Parenting After Separation
Voluntary attendance for Provincial Court, unless
ordered by the Court
In Edmonton, call (780) 413-9805
To download manual:
<www.albertacourts.ab.ca/fjs/FJS_PAS_Manual_12.
pdf>
Notice of Mandatory Seminar handout available
on side table
Child Focused
Legal TermsChoosing
Which Court“Best
Interests”Parenting
PlansCourt
ProceedingsOther Topics
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1. Parenting After Separation
Course topics include:
Relationship building
Effect of separation on parents and on children
Communication skills
Legal issues
Mediation and collaborative family law
Parenting plans
Child Focused
Legal TermsChoosing
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2. Other Workshops
Focus on Communication in Separation
Parenting after Separation for High Conflict
Families
See handout – Recognizing High Conflict
Coparental Relationships (from page 21 of PAS
Manual)
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3. Mediation
Parents meet with neutral mediator who
helps them come to an agreement
Approximately 80% success rate
Best to do early in the process (soon after
separation or even before separation)
Not appropriate for all situations (e.g. family
violence)
Child Focused
Legal TermsChoosing
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Interests”Parenting
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B. Legal Terms
Guardianship
A guardian is the person who is responsible for
the care, maintenance, and well-being of the
child.
Each parent will generally be a guardian of the
child (some exceptions for unmarried parents)
“Custody” and “access” are aspects of
guardianship
Child Focused
Legal Terms
Choosing Which Court
“Best Interests”
Parenting Plans
Court Proceedings
Other Topics
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B. Legal Terms
Custody and Access
Often referred to Parenting Time/Parenting
Plan/Parenting Arrangement.
Two Basic Components:
1. Decision Making
2. Scheduling/Residential Arrangement/Parenting
Time
Child Focused
Legal Terms
Choosing Which Court
“Best Interests”
Parenting Plans
Court Proceedings
Other Topics
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1. Decision Making
Parents who are guardians have joint
decision-making authority, unless limited by
agreement or Court Order
Means both guardians can make decisions
affecting their children (e.g. education,
health care)
Child Focused
Legal Terms
Choosing Which Court
“Best Interests”
Parenting Plans
Court Proceedings
Other Topics
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2. Scheduling
Primary residence - child resides with one
parent more than 60% of the time over the
course of a year
Split residence – each parent has primary
residence of 1 or more children
Shared residence – child has residence with
each parent 40%-60% of the time over the
course of a year
Child Focused
Legal Terms
Choosing Which Court
“Best Interests”
Parenting Plans
Court Proceedings
Other Topics
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B. Legal Terms
“Sole” or “Joint” custody
These terms relate to decision making abilities
of the parents and not the residential schedule
Child Focused
Legal Terms
Choosing Which Court
“Best Interests”
Parenting Plans
Court Proceedings
Other Topics
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B. Legal Terms
Joint Custody (most likely)
Awarded when both parents are capable
parents.
Day-to-day decisions generally made by the
parent with whom the child is residing, but
major decisions must always be made by both
parents
Child Focused
Legal Terms
Choosing Which Court
“Best Interests”
Parenting Plans
Court Proceedings
Other Topics
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B. Legal Terms
Sole Custody (rare)
One parent has full custody.
Child resides with one parent and this parent
makes all of the decisions.
Parent without custody usually has some
access to the child.
Child Focused
Legal Terms
Choosing Which Court
“Best Interests”
Parenting Plans
Court Proceedings
Other Topics
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B. Legal Terms
Access
Parent with “access” has the right to question
and be given information regarding the welfare
of the child (e.g. teachers, doctors, coaches)
Parent with “access” has the right to parenting
time with the child
Access is the right of the child and not the
parent.
Child Focused
Legal Terms
Choosing Which Court
“Best Interests”
Parenting Plans
Court Proceedings
Other Topics
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B. Legal Terms
Contact Order
Refers to contact between a child and a person
who is not a guardian.
Must apply to the court for a contact order.
Must also first ask permission (referred to as
leave) to apply for this order.
Exception for grandparents where parents are
separated or one parent is dead.
Child Focused
Legal Terms
Choosing Which Court
“Best Interests”
Parenting Plans
Court Proceedings
Other Topics
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C. Choosing Which Court
Court of Queen’s Bench
Divorce Act (married people only)
Family Law Act (unmarried and married)
Provincial Court
Family Law Act only (unmarried and married)
If proceeding under Family Law Act, which Court is
most appropriate for your situation?
Child Focused
Legal TermsChoosing
Which Court
“Best Interests”
Parenting Plans
Court Proceedings
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D. “Best Interests”
Standard used by the Court in family law to
make decisions that impact children
Parents should use this standard
Courts always make decisions based on what
is in a child’s best interest
Child Focused
Legal TermsChoosing
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Interests”Parenting
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D. “Best Interests”
This includes considering what parenting
arrangement will address:
maximum contact with both parents,
views of child (depending on how appropriate)
any family violence
plans prepared for care and upbringing,
Child Focused
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D. “Best Interests”
Each parent’s ability to provide for physical,
psychological, and emotional needs of child,
importance of keeping siblings together; and
any other important factors.
cultural, linguistics, religious, and spiritual
upbringing,
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E. Parenting Plans
Best interests of the child are always the
focus.
No “entitlement” to 50/50 or to primary care.
Must consider all circumstances of child and
parents and what will work from a practical
point of view
Child Focused
Legal TermsChoosing
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Interests”Parenting
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E. Parenting Plans
No “one size fits all” approach
What is in child’s best interests may change
as child gets older
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E. Parenting Plans
Should address:
Decision making
Parenting time (including holidays and special
occassions)
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E. Parenting Plans
May address:
Dispute resolution mechanism
Communicating child-related information to
other parent
Future changes to parenting plan
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F. Court Proceedings
If no agreement is possible, then the matter
will proceed to court.
The judge can make an interim or final
Parenting Order.
Child Focused
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F. Court Proceedings
Interim
Judge’s decision will only last until the next
court date or hearing.
Final
Judge’s decision is indefinite (until future
agreement or order changes it)
Child Focused
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F. Court Proceedings
Going to court is usually not in a child’s best
interest
Use as last resort
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F. Court Proceedings
Practice Note 7 – Intervention
Parenting expert will not provide opinion on
what is in child’s best interests
Makes recommendations to Court for process
that may assist family in addressing and
resolving parenting issues
Child Focused
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F. Court Proceedings
Practice Note 7 (cont.)
Evaluative intervention – provides information
to assist Court
Therapeutic intervention – works toward
resolution
Costs – generally paid by both parties
(subsidies may be available)
Child Focused
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F. Court Proceedings
Practice Note 8 – Parenting Time Assessment
Where Practice Note 7 not successful (or would be
ineffective)
Full assessment in which parenting expert makes
recommendations on what is in a child’s best interests
Costs – generally paid by both parties (subsidies may
be available)
Child Focused
Legal TermsChoosing
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Interests”Parenting
Plans
Court Proceedin
gs
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F. Court Proceedings
Litigations, trials, and contested hearings are
required in a very small number of cases.
Child Focused
Legal TermsChoosing
Which Court“Best
Interests”Parenting
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G. Other Related Topics
i. Mobility
ii. Variation
iii. Appeals
Child Focused
Legal TermsChoosing
Which Court“Best
Interests”Parenting
PlansCourt
ProceedingsOther Topics
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i. Mobility
Where one parent wishes to move with the
child(ren).
No presumptions in favour or against a parent
being able to move the child.
Determined by the best interests of the child.
Purpose and distance are important
considerations.
Child Focused
Legal TermsChoosing
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41
i. Mobility
Sometimes changes to parenting plan can
make a move work.
Sometimes both parents decide to move.
If a move has already occurred, action should
be taken quickly.
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ii. Variation
Possible to vary order if circumstances have
changed since order or agreement.
Still have to look at best interests of
child(ren).
No order related to children is ever
“permanent”.
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iii. Appeals
30 days to make an appeal after an order has
been made.
Appeals of interim orders are usually
considered unwise.
Limited chance of success after hearing has
occurred.
Child Focused
Legal TermsChoosing
Which Court“Best
Interests”Parenting
PlansCourt
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44
Reminder
Please fill out the feedback forms. Your
input is essential in helping us to improve
future sessions.
Child Focused
Legal TermsChoosing
Which Court“Best
Interests”Parenting
PlansCourt
ProceedingsOther Topics
45
Disclaimer
The information presented during this session
may have limited application to your particular
situation. The lawyers who are here this
evening CAN provide legal information that
may give you a greater understanding of how
the law might apply to your own situation. The
lawyers who are here this evening CAN NOT
provide you with individual legal advice.
Child Focused
Legal TermsChoosing
Which Court“Best
Interests”Parenting
PlansCourt
ProceedingsOther Topics