Custody Disputes in the Provincial Court of Alberta: A New Judicial Dispute Resolution Model

Abstract

In Alberta there is no uniform process or guideline for the application of the best interests of the child standard in custody disputes. The author asserts that in the absence of such provisions, the Provincial Court is free to develop its own process. The process for the application of the best interests of the child standard should be flexible so that each case may be treated individually, but, at the same time, follow defined standards. The author suggests that the Court must define community standards so that litigants understand the criteria used in decision-making. For many people, if the process is open and understandable then they are more likely to feel that justice has been done even in the face of an adverse result. The author addresses these process-based concerns by offering a new three stage model for custody dispute resolution. In the first stage the author suggests that details of how the child is functioning in his or her home, neighbourhood, and school should be explicitly outlined in an affidavit. The affidavit should emphasize the community values and child-centred perspective to be used by the Court. In the second, judicial dispute resolution, the author envisages a mediation that incorporates mini-trial procedure with the judge acting as an active participant in a non-adversarial context. If this fails, the presiding judge must step aside in favour of an independent judge and a regular trial will commence.