What circumstances and elements are looked at when determining which parent becomes the primary caregiver of a child in Alberta?

In Alberta, the determination of the primary caregiver for a child in the context of separation or divorce is a complex process guided by both federal and provincial laws. The paramount consideration in these decisions is the best interest of the child. Various factors are taken into account to ensure that the child’s physical, psychological, and emotional safety are protected. Here’s a detailed look at the elements and circumstances considered:

1. Federal and Provincial Laws: The federal Divorce Act applies to custody and support issues in a divorce, whereas the Alberta Family Law Act, effective since October 2005, governs child custody issues outside of divorce. This includes situations where parents are unmarried and either living separately or in an adult interdependent partnership​​.
2. Types of Custody in Alberta: Custody is divided into legal and physical custody. Legal custody involves decision-making about the child’s upbringing (education, healthcare, religion), while physical custody pertains to where the child lives daily. Parents are generally encouraged to share both legal and physical custody, but in cases where one parent is unfit, sole custody may be awarded to the other​​.
3. Primary Caregiver Determination: A parent is typically considered the primary caregiver if they have the child in their care for over 60% of the time. Shared parenting occurs when both parties have the child in their physical care between 40-60% of the time. The terms ‘parenting’ and ‘access’ refer to the physical time spent with the child​​.
4. Factors Considered by the Court:
   • The child’s physical, psychological, and emotional needs, including the need for stability.
   • The history of the child’s care.
   • Cultural, linguistic, religious, and spiritual upbringing and heritage.
   • The child’s opinions and preferences.
   • Proposals for the child’s care and upbringing.
   • Instances of family violence.
   • Relationships between the child and significant individuals in their life.
   • The parents’ ability and willingness to care for and communicate about the child’s needs.
   • Legal proceedings relevant to the child’s safety or well-being​.
5. Access Rights: These refer to the time a non-custodial parent spends with the child. Access can be regular visitation or specific arrangements like weekends. Access rights may be restricted or denied in cases involving safety concerns, such as a history of domestic violence or substance abuse​.
6. Children’s Input: Courts will consider the views of children who are old enough and mature enough to express a preference, although this does not mean they can choose where to live. The court may decide differently based on other factors like family violence or criminal behavior​.
7. Equal Consideration of Parents: There is no inherent bias favoring mothers or fathers. The court considers who provided daily care, the degree of attachment to each parent, and how to maintain the child’s lifestyle with minimal disruption​.
8. Financial Capability: Willingness to take on child custody is not sufficient. The parent must also demonstrate financial resources to sustain the child’s existing lifestyle​.
9. Child Support and Access: Payment of child support is a separate financial issue. Non-payment does not affect a parent’s right to access the child, as the courts prioritize what is best for the child​.

The process of determining the primary caregiver in Alberta is multi-faceted, aiming to ensure that the child’s best interests are at the forefront of any decision. Legal guidance is often necessary due to the complexity of the factors involved.