BC SHARED CHILD PARENTING – A WISHLIST/CHECKLIST TO CARRY YOU AND YOUR FAMILY INTO THE FUTURE
Shared parenting plans (as referred to herein) are regimes for the sharing of child parenting time on an equal or relatively equal basis. This is a plan frequently sought by parents and which is being implemented with increasing frequency. These plans can be agreed to, arbitrated or decided by the courts.
Audra Bayer mediator, family arbitrator and collaborative lawyer and head of our family dispute resolution department together with Shelagh Kinney, provides this very detailed shared parenting article given the new emphasis on out of court resolutions under our new Family law Act which takes effect on March 18, 2013. (*This article was inspired by and written with reference to the Judgment in Izyuk v. Bilousov, 2011 ONSC 6451 a decision of the Honorable Mr. Justice Pazaratz) You can contact our highly rated mediator/arbitrator and certificate of distinction award recipient at our Kelowna office.
A shared parenting plan requires a better than average degree of cooperation and communication and an Order or Agreement for shared parenting ought to be include a great deal of detail and ought to be future focused. By ensuring that you have looked to the future when negotiating the terms of your plan and by including detailed terms relating to transitions; communication; activities; sharing of holidays and special days; authorizations for information; financial disclosure and other such provisions you are not only creating a supportive structure for cooperative parenting but you are being proactive in terms of ensuring that you are making every effort to diminish the potential for conflict in the future for yourselves as parents but more importantly for your children.
Although you have retained a lawyer as your advocate in your family matter and for the purpose of providing you with legal advice as to your parenting rights and obligations, it is equally important that you provide clear and detailed instructions as to what you would like to see contained as provisions in your parenting plan; that you identify issues which have been the source of conflict historically or that could become sources of conflict in the future; that you identify your children’s needs and that you identify those things that you require to feel you need to feel comfortable and safe in proceeding with a plan that requires cooperation, communication and flexibility – particularly as the children get older and needs change.
The process of identifying those sources of conflict; needs for yourself and or your children and education as to rights and obligations will be a process that should include your lawyer and that also may include parenting coaches; communication coaches ; social worker(s); psychologist(s); financial planner(s); accountant(s) or such other professionals as you and or your partner may feel are necessary.
As a starting point in all of my cases when we are beginning the discussion of parenting plans, I like to provide my clients with a document that provides them with examples of clauses that they may wish to consider for purposes of inclusion in their parenting plan and consequently the negotiation of an agreement or alternatively pleadings and a Court Order.
As a caution, not all of these provisions are necessarily appropriate for shared parenting plans nor are they necessarily appropriate in other parenting plans. Each case turns on its own facts and the relevancy, necessity and or appropriateness of the inclusion of these clauses is something that you need to discuss with the professionals involved in your matter, and in particular with your lawyer:
a) Time sharing – a detailed schedule that includes transition days and times whenever possible is important;
b) Decision making: One ought not assume that because you have agreement on equal time sharing that there will be equal decision making authority. There are a number of models for decision making including the Joyce or Horn models; shared decision making authority; parallel decision making authority – where one parent has final decision making authority on one issue (e.g. medical) and the other parent has final decision making authority on another issue (e.g. education). You ought to also consider what the process will be in the event of an emergency or urgent circumstances (emergencies and urgent circumstances to be defined) and also in the event that it is not an emergent or urgent issue, what process you will use to resolve that disagreement (e.g. collaborative; cooperative; mediation; arbitration; med-arb; etc.);
c) be mindful of future residential arrangements and of the benefit of residing in fairly close proximity to the other to facilitate the time-sharing;
d) consider a provision that the ordinary residence of the child/ren will not be relocated outside of a certain parameter/distance without the written consent of both parties or further order of the Court;
e) the sharing of holidays/special days/ days that important to you or your family traditionally. Pay attention to detail when including these provisions. Generally with respect to block periods of time, consider the inclusion of a travel authorization and provisions related to cooperation with the execution and provision of travel documents including authorizations, passports, birth certificates etc. and also the provision of itineraries and contact information. Examples of such days would include:
i) Christmas Eve/Christmas Day, New Year’s Eve/ New Year’s Day and the Christmas Break. Pick up and drop off times are important on these days. Some of the things that may be considered are when children will open gifts with who particularly when of tender years; family traditions re: meals; religious considerations; what day will be considered the first day of the break and what day will be considered the last. If you are going to include a first choice provision with alternating years, ensure there is a notice provision with sufficient time to allow the person receiving notice to make their own plans and consider a provision which sets out what will happen if the notice is provided late;
ii) March Break: again, consider what the first day of break will be and what the last day of break will be; pick up days and times; first choice provisions and notice provisions;
iii) Easter Weekend – this includes Good Friday through to the Monday following the weekend typically but may also include the Thursday evening which is an evening prior to a holiday and sometimes it makes more sense to exchange the night before rather than requiring your children to be up and at it in the morning on a day that is supposed to be a day off from their routine for them. That consideration applies on days such as Mother’s Day; Father’s Day; in-service days etc.. It may be wise to consider what will happen in the event that the Easter Weekend forms part of the Spring Break;
iv) Father’s Day and Mother’s Day – typically irrespective of any other scheduling the child/ren will always be with the father on Father’s Day (be clear on times – will the transition be the night before? will the drop off be the following morning? Typically the period will include a period from the morning to extending after dinner) and the child/ren will always be with Mom on Mother’s Day. If you and your partner live in different communities you may want to consider this being a weekend;
v) Long Weekends: Consider how your schedule impacts on long weekends. Be aware of how many long weekends there are in your jurisdiction. Consider simplifying the division of these days be simply extending the weekend of care and control to include the day of the long weekend. Ensure that your definition of long weekend is the same as the other parent’s – are you talking only about stat/civic holidays? are you including in-services? religious days?
vi) Children and Parents’ birthdays: These days require “big picture” consideration. I typically recommend that birthdays are celebrated as they fall within respective periods of care and control and in the event that the birthday falls during the other parent’s period of care and control, you would celebrate the birthday on a day that you designate for such during your own period of care and control. In my experience, the child/ren do not mind and in fact frequently welcome two celebrations and this is particularly so if it is the case that having one celebration will be an opportunity for conflict between the parents or will be an occasion which is mired by tension for the child/ren. If you have a cooperative relationship and you have a child of tender years and have agreed to share the birthday by dividing the day equally or by sharing the day together, ensure that you remain forward thinking and that you have a plan for dealing with this day in the future when your child/ren is in school and or when there are new partners, etc. The key to maintaining a cooperative, flexible relationship is to ensure your lines of communication remain open and that you consistently review your parenting plan and provisions in sufficient time to allow you to have a productive, unrushed dialogue and to make necessary changes;
f) First Right of Refusal: This type of provision typically reads that if a parent who is scheduled to have the child/ren in his or her care and control and is unable to care him/her/them for a period of 48 hours or more, the other parent will be given an opportunity to care for her. If the notified parent cannot care for him/her/them, the notifying parent will make appropriate child care arrangements at his or her own expense;
g) Regular Communication: As previously underscored, healthy and productive communication is one of the pillars of the foundation of a successful shared parenting plan. In terms of day to day communication a typical provision would be that unless the parties agree otherwise, all ordinary communications shall be in writing using email or a communication tool such as ourfamilylwizard.com/keepandshare.com and in the event that the specified communication tool becomes unavailable the parties shall use email;
h) Urgent communication: A successful parenting plan will be proactive in providing the parties with tools to rely upon in the event of urgent or emergent circumstances such as: For anything of a truly time sensitive or urgent nature, the parties shall call or text and a response will be provided as soon as the other parent receives that communication. The communication shall at all urgent times be direct between the parties;
i) Responding to Communication: a shared parenting regime requires cooperation and respect. A failure to respond to communication is disrespectful and is an effective way to ensure conflict. Consider the inclusion of the following: The parties shall check for text or emails or ourfamilywizard correspondence at least once per day. The parties shall respond to written inquiries within 24 hours. If a reply to a question and/or a request for a change requires more time than the agreed to response time, an email shall be sent advising that the requested information cannot reasonably be ascertained by then and advising when a response can be expected;
j) Positive Communication: Sometimes it is useful to have a general provision that serves as a ground rule, a boundary setter or a reminder dealing with a goal or conduct which will be important to the maintenance of a cooperative parenting relationship such as: All communications between the parties and with professionals involved in the child’s life shall not be shared in any way with the child. All communications, written or otherwise, shall be cordial, brief and child-focused. The parties shall refrain from making personal or negative comments about one another, or extended family members or partners. The child shall not be used to relay messages between the parents. The parents shall not communicate about issues or non emergency arrangements when the child/ren is present or nearby. The parties shall not question the child/ren or comment to her about the other parent’s personal life and activities;
k) Dealing with Third Parties: A fair shared parenting agreement will ensure that each party has the same authority to deal with third parties who are involved in the child’s life and although the governing statute may provide for equal rights for each parent with respect to access to information; reports and the professionals involved, the reality is that many third parties are not either legally trained or legally aware of the statutory provisions and are more inclined to rely upon or feel more comfortable with a Court Order or Separation Agreement which has a provision which delineates who has authorization to communicate with or obtain information from themselves as third parties. The following is a provision which stipulates equal authority for same: “Both parties shall be equally entitled to communicate with all educational, medical, dental, recreational and social service providers for the child/ren. Each party shall keep the other fully informed of any communications they have with such service providers and the particulars of any new providers which shall not be engaged without the express consent of the other party save and except in true emergencies. Both parties shall be entitled to attend all meetings and or appointments with such providers. Both parties will execute consents and or authorizations which any professionals or service providers may require to facilitate equal communication and access to information by both parents;
l) Consultation: This is what is referred to as a positive obligation provision which affirms a mutual obligation. With respect to the obligation to consult you may consider the following: The parties will confer with one another in relation to non-emergency decisions in the child’s life. However after a reasonable opportunity for that discussion, the parent with care and control will have the authority to make that day to day decision on that day. With respect to decision making authority on the following major issues, this shall follow a parallel parenting plan such that:
- a) the parties will agree to be bound by recommendations of the professionals responsible for the child/ren’s care such as pediatrician; doctor; dentist and any and all other care providers or specialists including professionals at the school. However in the event of disagreement with each other or a significant disagreement with a professional, NAMED PARENT will have the right to make the decisions related to e.g. medical/dental subject to the other parent’s right to review in Court if he/she feels that the decision made by the NAMED PARENT is not consistent with the child/ren’s best interests. In the alternative you may want to consider a provision that provides that in the event of disagreement you and the other parent will attend to mediation or arbitration or med-arb. In the event that you are going to include such a provisions there are very specific terms that must be included to comply with the legislation including the Family Law Act and the Arbitration Act and International Arbitration Act. Please raise this with your lawyer;
- b) NAMED PARENT will be responsible for decisions related to school or education in the event that there is a disagreement with each other or a significant disagreement with a professional subject to the other parent’s right to review in court if he/she feels that the decision made by the NAMED PARENT is not consistent with the child/ren’s best interests. This provision would be paired with the above provision granting the other parent the parallel right to make decisions on medical/dental issues. These provisions together are an example of parallel parenting on decision making;
- c) A third option for when there is disagreement on a major decision is the use of parenting coaches or a parent coordinator. This would read as follows: They will retain NAMES as parenting coaches or NAME as parent coordinator. If there is a disagreement on a major decision they will go to the coaches/coordinator to assist with the resolution of the disagreement. If a parent coordinator is used, typically that coordinator is given the authority to make the decision (*note this is a form of arbitration and this must be considered in the drafting to ensure compliance with legislation. Further, the parties will sign an agreement with the parent-coordinator. If you are interested in seeing what such an agreement will look like please contact us and we will be happy to provide you with a sample of such an agreement.) If parenting coaches are used and there is no agreement, the parties have recourse to take that matter to mediation or the court as they may decide and their agreement or Order will provide;
m) Extracurricular activities: One of the more common sources of conflicts is which activity/ties the child/ren will be registered in; who is entitled to register and on what basis and what happens if the activity occurs during the other parent’s periods of care and control? Who will pay? The following provisions are designed to help address some of these issues:
- The child/ren may not be registered in more than 2 regularly scheduled activities per week, with each parent being entitled to select one, unless the parties otherwise agree in writing and the parent selecting the activity shall be responsible for all costs for that activity unless otherwise agreed;
- The parent selecting the activity shall be responsible to take the child/ren to the activity when s/he is with that parent;
- When that activity arises during the other parent’s time, the other parent will have the option of taking the child/ren to that activity or of allowing the parent who selected the activity to take him/her;
- To maximize the benefit of his/her participation in ongoing extracurricular activities, both parents will make their best efforts to ensure regular attendance;
- If a parent has a non-recurring conflicting commitment for the child on their time, they will provide at least 72 hours advance notice in writing of their alternate plans with the child;
n) Non -encroachment on time: This type of provision is a boundary setter and reminder to be respectful of the child’s time with the other parent: Apart from the aforementioned provisions regarding extracurricular activities and apart from their respective authority to schedule appointments for medical, dental, vision and school related issues, neither parent will make plans for the child when he is scheduled to be with the other parent without first having the written consent of the other parent. In addition, they will make every effort when scheduling the care provider and school appointments to avoid scheduling those appointments on the other parent’s time. The parents shall canvas proposed or potential changes to the schedule first with the other parent and prior to mentioning anything to the child/ren about a change and or a social activity;
o) No make up time: The issue of make up time can be one of significant conflict and you may want to have a provision which deals with this head on, up front: There shall be no make up time for missed parenting time (regular or holiday) unless both parents agree to this in advance and it is specifically confirmed in writing . In the event that someone works shift work or has a job where they may be called in for shifts on a regular basis, you may want to include an exception which allows for a certain period of make up time to be exercised within a certain period of times and perhaps on certain days;
p) Attendance at Events: this is self-explanatory: Each parent may attend any extracurricular activities open to the public, including sport practices, games, competitions, concerts including school concerts, performances, recitals, etc. The parents shall remain cordial during these occasions and not use them as an opportunity to discuss child related arrangements and issues. The parent who would normally have the child/ren at the time, shall assume responsibility and control of the child/ren. The other parent may briefly greet or encourage the child but shall otherwise observe a respectful and reasonable distance;
q) Scheduling Changes: If a change in the regular and or holiday schedule is requested due to a special event, celebration or unforeseen circumstances (family celebration, work demand or emergency etc. ) a written request shall be provided to the other parent in order to permit that parent to make a reasonable effort to accommodate that request. A response shall be provided within 48 hours of receiving that request. The request and change are to be confirmed in writing;
r) Ongoing medical care: Where the scheduling of appointments is a source of conflict the following provision may be appropriate: Parent X shall arrange medical appointments for the child/ren. Parent Y will arrange dental appointments. Each will provide the other with advance notice of all appointments or procedures as soon as they are arranged. Both parties shall be permitted to attend to all appointments and events;
s) Emergency medical care: Each party shall have authority to arrange emergency medical treatment for the child/ren but in such event, the party arranging the treatment shall make reasonable efforts to notify the other party immediately, to allow the other party to also attend at the emergency treatment facility as quickly as possible;
t) Contact Names: Both parents should be listed as contact persons with all medical, educational, recreational and social agencies involved with the child/ren;
u) Transportation/Transitions: Again this is self-explanatory: All transitions will be at the daycare or school unless they are closed in which case the transition will take place at the parties’ homes. The party whose care and control is beginning will pick up the child from the daycare or school and in the event that it is at home, the parties will transition within a reasonable period of time (e.g. 3 minutes). The parties shall refrain from any discussion of parenting issues during the exchange times or in the presence of the child/ren;
v) Clothing: Another area of conflict in some cases relates to the transitioning of clothing. One way of dealing with this area of potential conflict is to include the following provision in your Order or Agreement: To minimize what the child/ren must travel with both parents will have sufficient clothing for her and these items will not travel back and forth. Outerwear such as winter coats, boots, mitts, etc. will travel back and forth between the households. Every 2 months the parties will confirm in writing the child/ren’s sizes for outerwear and day to day clothing and they will ensure that he is appropriately dressed for his age, size, the weather etc. and will ensure that the clothing that s/he is wearing is clean and in good condition.
w) Child’s Name: Where there are concerns that one parent or the other may change the name of the child/ren which is a concern sometimes raised justifiably or not when there is a new partner, a provision such as the following can go a long way in saving you from grief in the future: Neither party will change the child/ren’s name(s) either formally or informally without the written consent of the other party or further court order;
x) Provisions relating to travel and travel documents are important provisions to include. There are far too many last minute calls to lawyers and urgent applications which take place between otherwise reasonable parties because they failed to set boundaries and provisions relating to travel. Frequently a conflict over travel will be the result of deferred anger from another issue. The conflict is seldom over the travel itself but more likely the result of one parent being upset over another issue or retaliating for another occasion when the parent wishing to travel did not agree to the other parent’s request whether it be to travel or otherwise. The provisions relating to travel and travel documents are as follows:
i) The parties shall immediately apply for a passport for child/ren and shall share the cost equally of obtaining that passport and any consequent renewal. The passport shall remain in a safety deposit box held in both of the parties’ names. Each shall cooperate with respect to any paperwork or travel authorization that may be required. Neither party will obtain any other passport for the child/ren nor will she be named under their own or any other’s passport;
ii) Neither party shall be permitted to remove the child from Canada without the written consent of the other or further court order. The party proposing international travel involving the child/ren will provide the other party with full particulars at least 60 days prior to the intended travel including the exact itinerary, destinations, accommodations and methods of communication. The child/ren may travel within Canada for vacation purposes with either parent, which travel will not require the consent of the other party. However, the parents shall notify one another in advance, in writing, whenever the child/ren will be sleeping away from that party’s ordinary residence for more than 2 nights in a row;
y) Emergency Contact Persons: Each parent shall designate a contact person of his or her choice should the other parent not be able to be contacted in case of emergency;
z) Health Coverage: If either or both parents have health coverage it is a good idea to put in a provision with respect to the maintenance of that coverage particularly given if you consider that in the event that one or both of you discontinue the coverage that it could significantly impact your financial circumstances: Both parties shall maintain for the child any health coverage available through any current or future employment. They shall keep one another informed as to any changes in relation to the availability or terms of such coverage. They shall process claims forms or reimbursement cheques within 2 weeks of receipt;
aa) Life Insurance: This is an optional provision but makes abundantly good sense as it essentially insures the child/ren’s maintenance: Each party shall maintain a policy with a benefit of no less than $150,000.00 in coverage (provided they quality for same and if they do not they will obtain the best coverage made available to them in the circumstances) and they shall name the child/ren as irrevocable beneficiary/ies. There shall be two trustees of each policy: the other parent and a person nominated by the policy holder. The issue of insurance obligations may be reviewed as the child gets older or changes arise however no change to the policy will be made without the written consent of the other or court order;
bb) Documents: This provision ensures the exchange of important documents: The parties shall provide one another with copies of all relevant child related documents including such as the BC Health Card, Social Insurance Number card; birth certificate; etc. They shall equally share the cost of obtaining copies of all documents;
cc) Financial Disclosure: Although there is a positive obligation pursuant to the Child Support Guidelines to provide financial disclosure it is useful to have that obligation mirrored in your Agreement or Order: The parties will provide to the other a copy of their full income tax return together with copies of all supporting documents and a copy of their Notice of Assessment and or re-assessment and 3 recent and consecutive paystubs no later than June 1st of each year commencing June 1st, 20–;
dd) Personal Disclosure: This is a provision which is intended to create a positive obligation for the parents to disclose to the other certain changes in their personal lives that could affect the parenting relationship and or have an impact on the children: The parties will notify one another immediately upon experiencing any change in their employment or education statuses; plans for change of residence; changes in the persons residing in their respective homes; relationship statuses provided that such persons are having contact with the child/ren;
ee) Dispute Resolution: It is always a good idea to have a dispute resolution clause in your Order or Agreement that is what process will be used to resolve disputes when they happen in the future. Examples of such processes include: mediation; arbitration; med-arbitration; the use of parenting coaches or a parent coordinator. Whatever process you choose be sure to ask your lawyer to ensure that the correct wording is used. This is important because that wording may affect the jurisdiction of the process and in fact can affect whether your choice of process is enforceable.
Lawyers are captured within the definition of “family dispute resolution professionals” in the new Family Law Act in British Columbia which comes into force on March 18, 2013. If you would like to discuss your parenting plan or questions relating to the restructuring of your family, call the family dispute resolution professionals at MacLean Family Law call us across BC toll free at 1 877 602 9900. We look forward to working with you.
