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Emergency Parenting Order Filed / Parent-Initiated Daycare Pick-up to Restore Status Quo (Alberta)
Austin (Edmonton)
Hello, ​I am seeking urgent guidance regarding a high-conflict custody situation involving my 3-year-old son. I have already filed an emergency application for a parenting order due to unilateral withholding, but I am wondering if my upcoming plan to pick him up from daycare this Thursday carries significant legal risks or could impact my pending court case. ​The Context: ​The Agreement: The mother and I have a default 50/50 verbal parenting agreement. My established parenting time is Thursday, Friday, Saturday, and Sunday until 2:00 PM. We have spoken about this agreement twice, and the mother even began drafting a contract based on it, though she now claims she does not remember it. Crucially, I have audio recordings of both conversations where these exact terms were explicitly agreed upon. ​The Schedule Shifts: The only agreed-upon modifications were moving the Sunday exchange from 11:00 AM to 2:00 PM, and my transitioning from night shifts to a day shift (taking two weeks off to accommodate this). We agreed that once my day job was secured, we would add Fridays to our son's daycare schedule. ​Current Situation: The mother has now unilaterally withheld our son. By this coming Thursday, it will have been a full two weeks of total withholding. ​False Allegations & Co-opting Daycare: The mother is citing fabricated allegations to justify the withholding. I am the parent who originally sourced, applied for, and set up the daycare for a July 14th start date, listing open availability for both parents to pick up. Following her withholding of our son, she went to the same daycare, submitted a second application to appear proactive, and did not list me as having pick-up availability. ​Past Context: She is attempting to paint me as dangerous, alleging I improperly took our son to social services. In reality, I utilized a temporary respite service (Kids Kottage) for his safety and well-being on a day I was moving out of our shared residence. On that day, the mother had intentionally changed her work shift to be unavailable from 1:00 PM to 9:00 PM. ​My Plan for this Thursday: Since I am the primary applicant on his daycare file, paid the initial registration, and my verbal parenting time begins on Thursday, I plan to go to the daycare early on Thursday and Friday to pick him up and exercise my weekend parenting time, thereby restoring the status quo of our verbal agreement while awaiting our court date. The daycare management is supportive; they have explicitly stated that my original application takes precedence over her secondary one, and they have emailed both of us confirming they recognize 50/50 access until a court order dictates otherwise. ​My Questions for the Forum: ​Given that I have already filed an emergency application for a parenting order, does executing this daycare pickup help or hurt my standing in court? Will it be viewed positively as restoring the status quo, or negatively as taking "self-help" measures while an application is pending? ​If I pick him up and she calls the police to my residence for a well-being check, how do Alberta police typically handle this when an emergency court application has been filed but an official order hasn't been granted yet? ​How do Alberta courts view the admissibility and weight of audio recordings that conclusively prove a verbal parenting agreement exists when one party claims "no memory" of it? ​Any insights on how Alberta courts view self-help measures to restore a status quo verbal agreement while an emergency application is actively pending would be greatly appreciated. Thank you.
I agree with Reena, it's very difficult to give advice without knowing the background. For example how long you've been separated and what parenting has looked like during that period could have a significant difference on our advice.
As you may not be able to speak to a lawyer to obtain a proper opinion, I'll say in the meantime that if you haven't been separated for months or years, there's no other agreement or order, and you've been very involved in your child's life, and there's no other important facts for us to know, then you're probably okay to pick up from daycare on Thursday. Parenting disputes rarely get approved for emergency hearings, so you might be quite a while away from a court making a determination. In the meantime, establishing a status quo can be very important as it can show that the status quo is workable, and courts are reluctant to interfere with working status quos that have been in place for some time.
I personally haven't had good luck with audio recordings. The court technically has a process to be able to play audio and video recordings, but judges seem reluctant to get technology involved outside of a trial. In your Affidavit I'd just type up a transcript of what was said and provide the recording to your former spouse. Technically you could hire a court reporter to type a more official transcript, but that may not be worth the hassle as courts often say that audio isn't completely reliable as it can be altered or cut so that context is missing. An agreement between parents isn't determinative either, an agreement is a factor the Court can take into consider but it always makes decisions based on what's in the best interests of the child.
13 days ago
Reena Herian - Accord Family Law (Edmonton) Society President
Hi Austin,
Due to the complexity of your matter, you should speak to a lawyer directly for advice.
Because lawyers need sufficient information to be able to provide an opinion, and to be able to ask you questions (which usually means at least a half-hour consultation), the lawyers here can only provide basic information and answer very general questions.
Please contact a lawyer directly through the Search to seek assistance with your matter. Thank you for your understanding.
04 days ago
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