In this section… 

You will learn how Canadian courts decide child custody based on the best interests of the child, including their safety, stability, and emotional well-being. It explains how courts handle parenting matters involving Muslim families, when religious or cultural traditions may be considered, and under what circumstances parenting arrangements can be changed after the initial court decision.

In Canada, decisions regarding parenting and access are guided by secular family law, which prioritizes the best interests of the child and other factors that affect family relationships. While Islamic law may influence family matters, Canadian courts primarily focus on legal criteria set out in the Divorce Act, provincial family law, and case law when making decisions. 

For parenting arrangements, the court considers the child's physical, emotional, and psychological needs, including their cultural and religious background. While Islamic law may provide a basis for parenting decisions, Canadian courts will only uphold religious practices if they align with the legal framework that ensures the well-being of the child or spouse, taking into account cultural practices that support their overall development.

On what grounds is the decision for child custody made?

In Alberta, decisions regarding parenting time and responsibilities are primarily guided by the principle of what is in the "best interests of the child”. This means the courts will always prioritise the child's well-being, stability, and development over the parents' preferences in all such cases.

According to the Family Law Act, the authority to make decisions about a child is linked to guardianship status, rather than biological parentage. Generally, a child's legal parents are also their guardians, giving them the right to make important decisions about the child's care and upbringing. 

When determining what is in the best interests of the child, Alberta courts consider several factors, including:

• The child’s physical, psychological, and emotional needs, including the need for stability
• The child’s history of care
• The child’s cultural, linguistic, religious, and spiritual background and heritage
• The child’s views and preferences, if they are of an appropriate age and maturity
• The relationships the child has with those they live with or who are significant in their life.
• The parents' ability and willingness to meet the child's needs and to communicate and collaborate on their upbringing
• Any history of family violence
• Any other legal matters that may affect the child’s safety or well-being

These points help the court decide who should make decisions for the child and how much time the child should spend with each parent.

How do Canadian family courts handle child custody matters involving  muslim families? Are religious considerations taken into account?

The dominant singular factor for judges when determining parenting matters is, “best interest of the child”.

Religious considerations are not the primary focus in custody decisions; instead, the courts prioritize factors that ensure the child's well-being, stability, and development.

In Canada, family courts handle shared parenting matters, including those involving Muslim families, with the same approach as other parenting cases—by prioritizing the best interests of the child. This approach focuses on ensuring the child’s well-being, stability, and development, rather than making decisions based on religion. However, the court may consider cultural and religious factors when they are relevant to the child's upbringing.

For Muslim families, the court may consider the following:

• Cultural and Religious Practices: 

The court may take into account the child's exposure to Islamic values, traditions, and practices if they align with the child's well-being and overall development.

• Parental Agreement: 

If both parents agree on a shared parenting arrangement that respects the child's cultural and religious background, this may influence the court’s decision. If there is a disagreement, the court will assess what is best for the child based on factors like stability, continuity, and the child’s individual needs.

• Best Interests of the Child: 

This principle guides the court in evaluating how each parent’s ability to meet the child's physical, emotional, and psychological needs supports the child’s overall development.
This may include maintaining connections to the child’s cultural and religious practices, if deemed beneficial for the child.

While religious practices such as observing prayer times or fasting during Ramadan may be important, the court’s main focus will always be on what will most positively contribute to the child’s growth and happiness.

How do Canadian courts handle situations where one parent wishes to raise the child according to religious or cultural traditions (e.g., Islamic practices)?

Decisions are always based on the best interests of the child and the facts present in each individual case. If both parties intended to be adhering to Muslim rules, then a case could be made that a Judge should follow the Muslim rules, but if parties never intended to be specifically religious, it might not matter to a Judge to adhere to muslim rules.

In Canadian courts, including those in Alberta, when one parent wants to raise a child according to particular religious or cultural traditions, such as Islamic practices, the primary focus remains on the child’s best interests. Although the court does not base its decisions on religious beliefs, it does take into account religious and cultural practices if they are important to the child’s well-being and development.

What law guides these decisions?

Section 16(1) of the Divorce Act dictates that when determining parenting time or decision-making responsibilities, the court must prioritize the best interests of the child. According to Section 16(2), the primary consideration in assessing these interests is the child’s physical, emotional, and psychological safety, security, and overall well-being, which should be evaluated using the factors listed in Section 16(3).

Section 16(3) outlines several factors the court must consider when determining the best interests of the child, though this list is not exhaustive:

• The child’s needs based on their age and stage of development, including the need for stability
• The nature and strength of the child’s relationships with each parent, siblings, grandparents, and others important in the child's life
• The willingness of each parent to support the child’s relationship with the other parent
• The history of the child’s care
• The child’s views and preferences, taking into account their age and maturity, unless these cannot be determined
• The child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous traditions
• Any plans regarding the child’s care
• The ability and willingness of each parent or relevant individual to care for the child and meet their needs
• The ability and willingness of each individual to communicate and cooperate, particularly with one another, regarding matters affecting the child
• The presence of any family violence and its impact, including:
• • The ability and willingness of any person involved in the family violence to care for the child
  • The appropriateness of requiring individuals to cooperate on issues affecting the child
• Any civil or criminal proceedings, orders, conditions, or measures relevant to the child’s safety, security, and well-being

Section 16(4) specifies particular factors to consider when assessing the impact of family violence, including:

• The nature, seriousness, and frequency of the violence, and when it occurred
• Whether there is a pattern of coercive and controlling behavior toward a family member
• Whether the violence directly or indirectly involved the child
• The physical, emotional, and psychological harm or potential harm to the child
• Any risk to the safety of the child or other family members.
• Whether the violence has caused the child or others to fear for their safety or the safety of another person
• Any actions taken by the person engaging in family violence to prevent further incidents and improve their ability to care for the child
• Any other relevant factors

Can parenting arrangements be changed after the initial court decision? If so, under what circumstances?

Yes, parenting arrangements can be altered after an initial court decision in Canada, including Alberta, especially if there is a significant change in circumstances that justifies the modification. But any change must still be based on what is in the child’s best interests.

Here are the primary situations that may lead to changes in parenting arrangements:

• Material Change in Circumstances: 

A major change in either the parent’s or the child’s situation may prompt a revision of the parenting arrangement. This could include events like a parent moving, changes in the child’s health, or a parent being unable to care for the child. Such changes must be substantial, not just minor or temporary.

• Best Interests of the Child: 

The court will prioritize the child’s best interests when deciding whether a change to the arrangement is necessary. If the current arrangement no longer supports the child's well-being or growth, the court may modify it.

• Parental Agreement: 

If both parents agree to change the existing arrangement, and the new plan benefits the child, the court may approve the modification. However, even with agreement from both parents, the court must ensure that the new arrangement is in the child’s best interests.

• Family Violence: 

If there are concerns that family violence is affecting the child's safety or emotional health, the court may reconsider the parenting arrangement to ensure the child’s protection.

• Changes in Parental Ability: 

If a parent’s capacity to care for the child changes—for example, due to health problems, job loss, or other circumstances—the court may adjust the arrangement to better meet the child's needs.

• Child’s Preferences: 

In some cases, if the child is mature enough, their views and preferences may be considered when modifying the arrangement. However, the child’s wishes are just one factor among many and do not solely determine the court's decision.