TOP 5 PARENTING TIME PRINCIPLES (Part 1 of 2) Call 1 877 602 9900
Peter Graburn senior associate at our Calgary office knows parenting is hard. Even when parents are living together, it is sometimes difficult to agree on even the day-to-day decisions involved in raising children, let alone the major decisions regarding their:
● education;
● religion;
● health care, and;
● general well-being.
TOP 5 PARENTING TIME PRINCIPLES Call 1 877 602 9900
But what about when parents are no longer living together, ie. after separation or divorce?
This often causes greater disagreements, particularly about who the children will live with (primary residence) and how much time the child(ren) will be with each parent (parenting time and access). If the parents cannot agree on this, the Court may be asked (possibly after trying to mediate the issue) to make this decision.
TOP 5 PARENTING TIME PRINCIPLES – Call 1 877 602 9900
So how do Judges decide the issue of parenting of children in family law cases? There are at least five (5) basic parenting principles Judges may apply in parenting cases, namely:
● Maximum Contact with Each Parent;
● Incremental Increases in Parenting Time;
● Short, Frequent Contact with Each Parent;
● Voice of the Child, and;
● Best Interests of the Child.
TOP 5 PARENTING TIME PRINCIPLES – Call 1 877 602 9900
In this post, Peter Graburn of our Calgary office looks at the sometimes conflicting first two (2) principles. Peter Graburn will discuss the remaining three (3) principles in another post.
●Maximum Contact with Each Parent – this should seem pretty basic: children should spend as much time with each parent as possible in order to establish meaningful bonds with both their parents and this should continue as much as possible after separation as before. In fact, Section 16(10) of the Divorce Act of Canada (known as the ”maximum contact rule”) states that children should have as much contact with each parent after separation and divorce as is consistent with the children’s best interests. Lorne MacLean Q.C., founder of MacLean Law, helped clarify the law on the maximum contact rule in winning the case of Young v. Young [1993] 4 S.C.R. 3 at the Supreme Court of Canada, which established that the principle of maximum contact (in this case, involving the issue of exposure of the children to the access parent’s religious beliefs and practices) is to be applied from a child-focused perspective, involving the right of the child to (as SCC Justice McLachlin stated):
“the benefits of a free and open relationship which permits the child to know the access parent as he or she is.”
● Incremental Increases in Parenting Time – again, this would seem pretty straightforward. If one parent has been granted (or exercises) limited parenting time on the separation of the parents, it may not be in the child(ren)’s best interests (particularly if the children are young) to greatly increase that parenting time (ie. to shared or primary custody) extremely quickly (ie. you can’t go from “0 to 60” overnight!). Incremental increases in parenting time (ie. extending the length of the parenting time in structured stages over a set period of time) is a reasonable parenting regime.
TOP 5 PARENTING TIME PRINCIPLES – Call 1 877 602 9900
However, there is currently no specific provision for this reasonable parenting plan in any legislation applicable in Alberta or elsewhere in Canada. In fact, in a recent Ontario case (Brown v. Lloyd, ONCA, 2015, upheld on appeal), a request for an incremental increase in parenting time was denied on the basis of the leading Supreme Court of Canada decision in Gordon v. Goertz ([1996] 2 SCR 27) that there must be a “material change in circumstances” (ie. a change that has altered the child’s needs or the parent’s ability to meet those needs in a fundamental way) before a final custody order can be changed. Under the current law, the increased age of the child did not constitute such a “material change in circumstances”.
TOP 5 PARENTING TIME PRINCIPLES – Call 1 877 602 9900
Accordingly, there seems to be quite a disconnect between the basic principles of the law in this area. The principle of maximum contact (above) stresses that children benefit from spending as much time with each parent as possible. However, the law that there must be a material change in circumstances before that maximum contact can be effected hampers such maximum contact being incrementally implemented over time. This disconnect stresses the importance of implementing a reasonable parenting regime (or structuring a reasonable incremental increase in parenting over time) as early as possible after separation.
Calgary Parenting Principles lawyers understand the underlying principles Courts look at and apply in making decisions regarding custody and parenting of children – our Founder Lorne MacLean Q.C. helped shape those principles! Calgary Parenting Principles lawyers assist their clients to come to a mediated agreement regarding the custody and parenting of their children if possible and, if not possible, to understand the legislative, case-law and practical considerations a Judge will apply in making those decisions on behalf of parents.
If you have questions on this blog or how TOP 5 PARENTING TIME PRINCIPLES impact your case Call 1 877 602 9900 now. Book an appointment at any of our 6 offices across Western Canada.
