Applying to Court for Parenting? Here's what you can expect.
By Mat Wirove, Senior Family Lawyer and Mediator, Calgary
Parenting is one of the most important and most common issues in the Court system, and ‘best interest’ of children often prompts people to want to move as quickly as possible. However, when going to Court, many are surprised to learn that reaching a decision can take a while, ensuring the proper information and time is given to the ‘best interest’ assessment. Additionally, in the Alberta Court of Queen’s Bench Family Practice Note 2, the Court has formally outlined the following:
9. Applications for change of custody or substantial changes to a parenting arrangement will not be heard in Morning Family Law Chambers; rather, these applications must go to Special Chambers.
Types of Applications
To explain, there are a number of different types of applications: Morning Chambers, Special Chambers or a Trial/Oral Hearing. The acknowledged quickest way to get before a court is Morning Family Law Chambers. There, the parties receive about 20 minutes total face-time; often with the volume of applications scheduled on any given day, it is less time. Frequently in the Court’s view, more time is needed to properly assess Children’s best interest and a Family Law Special Chambers application or trial will be scheduled. A Special Chambers application/Domestic Special is a more formal process where the Justice has the opportunity to review all materials beforehand, and the parties get an hour, a half-day, or a full day to argue the issues. For those worried about the speed of change resulting from this process, setting a date for Special Chambers application or Trial can take many months.
It should be noted that in the Court of Queen’s Bench in Calgary and Edmonton, the first appearance will likely be a Family Docket Court Appearance. Family Docket Court is a triage court to determine next steps; it was established to take the pressure off of the Court so that the Justices could better manage matters and keep improper applications from filling up the Morning Chambers list. If you are attending Docket Court for parenting matters and agreement cannot be reached on some form of Alternative Dispute Resolution, expect to be sent to a Special Chambers application or Trial.
Of course, there are exceptions that prove the rule. In a recent Court of Appeal decision Huitt v. Huitt, 2021 ABCA 235, the Alberta Court of Appeal upheld a significant change to parenting in Morning Family Law Chambers – the facts of this case warranting the change due to the potential for emotional harm to a child. There was also a previous parenting assessment and Counsel for the Child appointed that the Court could rely on. In the Huitt case, the Appellant applied to set aside a Morning Chambers Decision that varied their parenting time. In their decision the Court held that the Morning Chambers Justice had the discretion to determine whether he had the proper information and sufficient resources before him to enable making a proper assessment of the best interests of the child. In deciding on the procedural issue, the Court states:
[6] This court has recognized the general desirability of this provision of the Practice Note. The overriding objective is always the “best interests of the children”, and there is not always sufficient time in morning chambers for the presiding judge to review the record and reflect on the issues. Unless there is some urgency or other satisfactory reason, significant changes in parenting should not be made in morning chambers: HG v RG, 2017 ABCA 89 at paras. 8-9; L.D.M. v W.F.T., 2017 ABCA 106 at para. 7.
[7] There is also a procedural reason for following the guidance in item 9 of Practice Note No. 2. Practice notes do not have full force of law, as for example do the Rules of Court, but they should still generally be followed. They have been described as “informational statement(s) published by the Chief Justice for the guidance and assistance of the registry staff, the legal profession and the public”: R v Sharpe (1999), 181 DLR (4th) 246 (BCCA) at para 12. Practice notes provide guidance to litigants and the Bar as to what they can expect of each other, what the Court expects of them, and what they can expect of the Court. If the Court routinely undermines the efficacy of a practice direction, counsel and the litigants will be tempted to do the same. Procedural uncertainty does not assist in resolving disputes, and indeed can divert attention from the substantive issues. This appeal, for example, is focused on procedural issues, rather than on the best interests of the child.
In essence, applying to the Court for a change in parenting is likely going to be a lengthy process, as the Court will ensure they have all the required information before making a decision that affects a parenting schedule. The best way to avoid delay? Try some other form of dispute resolution – such as mediation – if you want a long lasting arrangement to fit your family. That way, you and your ex-spouse get to decide on the parenting schedule, not a third party.
If you and your ex are experiencing problems with parenting, contact the family lawyers at Crossroads Law today for a free 20-minute consultation. The Crossroads Law team is well-versed in parenting disputes and can help determine the best strategy for your circumstances. Crossroads Law has both Alberta family lawyers and BC family lawyers, as well as mediators, to assist with any family law dispute in BC or Alberta.
