The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic discusses how to enforce visitation or access rights to a child.
When parents no longer live together, it becomes difficult to arrange for access visits that will satisfy both parents. The Family Law Act, which came into effect on October 1, 2005, replaced the Domestic Relations Act, the Maintenance Orders Act, the Parentage and Maintenance Act, parts of the Provincial Court Act, and the Child, Youth and Family Enhancement Act. Under the Family Law Act, you will note that the Act no longer makes reference to “custody” and “access”; Rather, the choice of words are “parenting” and “contact”. “Access” now means “parenting time”.
Applications for Parenting or Contact Orders may be brought by unmarried or married couples. However, if there is an existing divorce action, applications should be brought under the divorce action to prevent multiple ongoing actions and applications. According to Section 16 of the Divorce Act, unless the Court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education, and welfare of the child. Repeated denials of access by a custodial parent could constitute a basis for contempt, or in extreme cases, cause the Court to change the custody arrangements.
Parenting orders are new to family law and encourage both parents to be involved with the child in most cases. The Court may make a Parenting Order when a child has more than one guardian (usually parents) who live apart and need assistance to cooperate in raising the child. A Parenting Order can allocate parenting time and parenting responsibilities between the parents. A Parenting Order sets out how decisions about the child are to be made, and how the child’s time is shared between the parents.
The Court may make a Parenting Order relating to:
- The exercise of powers by a guardian;
- Responsibilities of guardianship; and
- Entitlements of guardianship.
A Contact Order addresses the ability of grandparents and others who are not guardians to spend time with the child. All other persons must require approval of the Court to apply for a Contact Order. A non-guardian’s time with a child is called “contact”. Under the Family Law Act, grandparents have an unrestricted right to apply for contact with grandchildren when parents are separated or one of the parents is deceased. Parents who are not guardians, or persons standing in the place of parents, such as a step-parent, may also have such an unrestricted right to apply for a Contact Order.
Prior to making a Contact Order, the Court must consider whether:
- Contact would be in the best interest of the child;
- The child’s physical, mental, or emotional health will be jeopardized if contact is denied; and
- The guardians’ denial of contact is unreasonable.
Part 2, Division 4 of the Family Law Act contains express provisions for Enforcement of Parenting and Contact Orders. An Enforcement Order is an Order made by the Court to enforce a parent or guardian’s time with a child. This applies to Parenting Orders, Contact Orders, and Access and Custody Orders issued under the Divorce Act, the Provincial Court Act, or the Domestic Relations Act.
An Enforcement Order made by a Court may contain one or more of the following provisions:
- A provision requiring the respondent to give the applicant compensatory time;
- A provision requiring the respondent to give security, in the form and amount and under the conditions determined by the Court, for the performance of the obligation in the time with a child clause;
- A provision requiring the respondent to reimburse the applicant for any necessary expenses actually incurred as a result of the denial of time;
- A provision imposing on the respondent a penalty in an amount not exceeding $100 for each day there has been or is a denial of time to a maximum of $5,000 and in default of payment to imprisonment for a term not exceeding 90 days;
- A provision providing for the respondent to be imprisoned, continuously or intermittently, to a maximum of 90 days for a denial of time until time with the child is given;
- Where the Court is satisfied, based on the respondent’s history of denial of time or based on other reasonable and probable grounds, that a denial of time will occur, a provision directing an enforcement officer to act in accordance with Section 44;
- A provision directing the respondent or the applicant, or both, to do anything that the Court considers appropriate in the circumstances that is intended to induce compliance with the time with a child clause.
If you have one or more of the above Orders made by the Court prior to October 1, 2005, these Orders can still be enforced under the Family Law Act.
If you have problems with parenting or contact, you may apply to the Alberta Courts for a Parenting or Contact Order. An application can be made to the Family Division of the Provincial Court or the Court of Queen’s Bench. Generally, the Provincial Court is less formal. To make an application in Provincial Court, you can ask for the forms from the Family Justice Services at the Courthouse, or get them online at www.albertacourts.ab.ca/familyjusticeservices a hearing date will be set and you may represent yourself in the Family Division of the Provincial Court if you wish. If a Court date has been set, then you or your lawyer should appear in Court on that day. If you are unable to attend Court on the date set you should contact the Court Clerks. Otherwise, if you do not appear, the Court could set a new date and not inform you of that date, or the Court might proceed and make a decision and a Court Order without you providing any information. If you are the applicant, the matter could be dismissed.
If you wish to make an application in the Court of Queen’s Bench, please call the Family Law Information Centre to obtain the necessary forms. Their number in Calgary is 403-476-4744 and they are located on the main floor of the Courthouse. The number in Edmonton is 780-415-0404. The number in Grande Prairie is 780-833-4234. For toll-free access to these offices from elsewhere in Alberta, the government RITE line is 310-0000. An application in the Court of Queen’s Bench is more complex and you may want a lawyer to represent you. If your children do not live in Alberta, you must make the application to the Court in the province where the children live. Consult with a lawyer if this is your case.
If you already have a Court Order but the parenting time or contact arrangements are no longer suitable, ask the Court to vary or change the Order. The Court may vary an Order if it is satisfied that the conditions, means, or circumstances of a child have changed since the last Order was made.
Lawyers and the Judiciary have been working diligently to create workable solutions for families where parenting time and contact are in conflict. Alternative options besides applying for a Parenting or Contact Order in Court include Collaborative Law, case management, Judicial Dispute Resolution, mediation, four-way meetings, and Family Court Counseling Services. Please consult with a lawyer to determine whether any of the above options can help you resolve all or part of the family conflict.