Resolving Custody Outside of Court in Alberta: 6 Options

Litigation can get expensive, time-consuming and hostile. A growing number of family law professionals and even courts recommend parents try to agree on a parenting plan outside of court instead.

When parents can't negotiate on their own, alternative dispute resolution (ADR) methods provide them with the professional guidance they need to agree on parenting time, decision-making responsibility and more. In a few methods, the professional can actually make decisions when the parents can't agree.

You can try an ADR method before or during the court process — or after, if you're having trouble following the terms of your court order or earlier agreement. Sometimes, ADR entirely replaces going to court, but you will need to attend a short court appearance if you want an order.

You aren't required to get an order for the parenting agreement you reach in ADR, but it's recommended that you get one to uphold the agreement's terms. If you're ending your marriage, you will still need a divorce judgment, and it's generally a good idea to have your parenting agreement included in this order.

Mediation

Mediation involves a trained professional who helps you talk through your issues to reach an agreement.

It's recommended that you take an online Parenting After Separation course before going to mediation. You're required to take the course if you want to turn your agreement into a court order.

The Court of King's Bench has two free mediation programs for parents. One is for creating a parenting plan, and the other is for reaching a child support agreement. To participate, you must be separating or divorcing and at least one parent must earn less than $40,000 per year. Plus, both parents must register for mediation within two weeks of one another.

If court mediation isn't available for your case, the Alberta courts offer a guide to finding a private mediator. Private mediators charge $150 to $500 an hour.

The processes for private and court mediation are quite similar.

The mediator starts by meeting one-on-one with each parent for a family violence screening. If the mediator finds violence, they put in safeguards for the participants, or they decline to mediate if safety is uncertain. Some mediators are specially trained to handle family violence cases and may have a higher tolerance for mediating such cases.

Parents and the mediator sit together for each mediation session that follows, unless the parents need to sit in separate rooms for some reason. Under certain circumstances, like parents having an imbalance of power or extreme anxiety, a parent may bring a support person if the mediator and other parent agree to the arrangement.

During the first session, the mediator explains the process and learns more about what each parent wants. At later sessions, the mediator guides parents as they tackle the disputed topics one by one. Each parent explains their needs and interests, and the mediator facilitates the conversation so parents can find the best solution for their family.

Each session is two to three hours long. Mediation can wrap up after just one or two sessions. It may take longer if you have matters other than parenting to decide. You can exit meditation at any time if you don't think it's working.

If you reach agreements, the mediator will write a summary, which you or your lawyer can write into an official agreement.

Collaborative family law

In collaborative law, a "collaborative team" of professionals helps parents reach an agreement. Each parent has a lawyer, and the parents may share other professionals like financial analysts, child specialists, communication specialists and divorce coaches.

In the first meeting, parents and their lawyers discuss and sign the collaborative agreement. This contract lays out rules for the process, including that parents must hire new lawyers if the case goes to court. You'll also determine the order in which you'll discuss each topic, and you may decide on short-term solutions for urgent issues.

In later meetings, other members of the collaborative team attend if they can help you work through the matters you're discussing.

Collaborative meetings last around two hours each. It's common to take breaks during the sessions to keep stress levels low and allow the participants to refocus.

The lawyers write up the terms of any agreements reached. The collaborative process ends once parents agree on everything (or, in rare cases, opt to take remaining disputes to court).

Lawyers often charge the same rate for collaborative law as they do for litigation. This is often $250 or more an hour, depending on the lawyer's location and experience. You'll also need to pay the other professionals involved. Fees for the other professionals are split equally, unless you agree otherwise.

Arbitration

In arbitration, a third party who is essentially a private judge makes a binding decision for parents.

Together, parents must choose an arbitrator and sign an agreement to arbitrate. You might also need to find a venue.

Arbitration can wrap up in a single day or may take a few days.

To start, the arbitrator explains the process and sets out the rules. Once the arbitration begins, parents present evidence to support how they believe the case should resolve (like in a trial).

Arbitrators typically charge $250 to $800 an hour, which parents split. How they split it can be part of the arbitration decision.

Parenting coordination

Parenting coordinators (PCs) help parents with high levels of conflict follow the terms of their parenting plan. They either guide parents toward an agreement or make decisions for them as an arbitrator would.

PCs are often appointed by court order. In a parenting coordination order, the court tells the PC the issues they are allowed to decide.

Meetings with the PC happen in person or remotely. At the start of coordination, you may have regular meetings, for example, every two weeks. Afterward, you'll just meet when necessary.

The PC's contract lasts two years. After that time, parents have the option to renew.

Expect to pay around $300 per hour for the PC's services. You'll split this cost evenly with the other parent or another way by court order or agreement.

ADR methods available in court (Calgary and Edmonton only)

In addition to court mediation, some judicial centres in Alberta offer the following.

Family resolution counsel meetings

Family resolution counsel are lawyers hired by the court to help parents reach agreement. They're available for free as part of Family Docket Court in the Court of King's Bench in Calgary and Edmonton.

Parents meet with resolution counsel voluntarily or because the court orders them to. In either case, you'll need a court order to attend.

You qualify to attend if one or more of the following applies:

• At least one parent does not have a lawyer.
• At least one parent earns less than $70,000 annually.
• There are few or no other ADR options suitable for your case.
• Other ADR attempts were unsuccessful.
• The case has high conflict.

Meetings with resolution counsel last one to two and a half hours. You may have more than one meeting if it seems you're progressing toward an agreement.

Once you reach an agreement or it's determined that one isn't possible, the lawyer will write up a report for the Family Docket Court judge detailing the agreement or outstanding issues.

Judicial dispute resolution

During judicial dispute resolution (JDR), a judge attempts to guide parents toward an agreement before trial. Parents only go voluntarily. You may have to join a waiting list to attend.

JDR is available for free in Calgary and Edmonton (in both the Court of King's Bench and the Alberta Court of Justice).

In binding JDR, the judge can make a decision for parents and issue a court order if parents can't reach an agreement. This makes a trial unnecessary. In nonbinding JDR, the judge can't make a decision, but they may tell parents how they would rule, which is sometimes enough to encourage a settlement.

Tips for success in ADR

• Put your children first.
• Be respectful of the other parent. You'll still be involved in one another's lives through your children.
• Stay open to new ideas.
• Ask questions when you don't understand something or need more insight into how the other parent is thinking.
• Make building a co-parenting relationship a priority.
• Don't feel pressured to reach a full agreement. You have the option to settle some issues and go to court over others.
• Don't aim to create a parenting plan that will last for the child's entire childhood. Instead, leave room for change as your child ages.

Preparing for alternative dispute resolution sessions

Preparation is as important when you decide parenting arrangements through an alternative method as when you decide them in a courtroom.

You'll still be trying to convince someone — the other parent, an arbitrator, a parenting coordinator or a judge.

A proposed parenting plan with a parenting time schedule presents your argument persuasively. You may also want to present messages exchanged with the other parent, a log of important interactions with the other parent, your child's expenses, and more.

The Custody X Change online app lets you create all of this in one place.

It has:

• A parenting plan template
• Customizable parenting calendars
• Printable parent-to-parent messaging
• A parenting journal
• An expense tracker
• And beyond

Custody X Change prepares you for any method of deciding parenting arrangements in Alberta.

It empowers you to get what's best for your child.