CALGARY TOP 5 PARENTING TIME PRINCIPLES (Part 2) By Peter Graburn Managing Associate MacLean Family Law Calgary.
In a previous post (see Top 5 Parenting Principles Part 1) I discussed that if separated parents cannot agree on the major decisions regarding their children (ie. regarding their education, religion, health-care and general well-being), the Courts may be asked to step in and make these decisions on behalf of the parents. But how do the Courts make these decisions? In this blog, I will explain more of my Calgary Top 5 Parenting Time Principles. As previously indicated, 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.
Calgary Top 5 Parenting Time Principles
I discussed the first two (2) sometimes conflicting Calgary Top 5 Parenting Time Principles in my previous post. In this post I discuss the remaining three (3) of my Calgary Top 5 Parenting Time Principles, namely:
● Short, Frequent Contact with Each Parent – When parents are living together, children do not usually see their parents together all the time. Often children only see both parents together when they are having a family dinner or on family visits, trips, etc. More often, children usually only see each parent for short periods of time through the day (ie. when the parent is helping with homework, taking the child to school, activities, friends, etc.). This is what a Court will try to structure when parents are separated – short periods of parenting (ie. a couple of days) with each parent during the week (particularly when the children are younger), if possible.
● Voice of the Child – In previous posts I have discussed the increasing tendency of parents (and their lawyers) to try to introduce the direct input of their children into the decision of the Court regarding their primary care and parenting, whether by way of psychologist’s reports (ie. Practice Note 7 or 8 Reports) or lawyer’s involvement (ie. either by a letter or full representation of the child). I also discussed the often very different approaches Courts may take in accepting and using this type of evidence. In the 2017 case of R(G) v. K(G) (2017 ONCA 108), the Ontario Court of Appeal concluded (at para. 67):
“This appeal demonstrates the importance of the emerging movement to incorporate the voice of the child in all matters concerning minors. The degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the judge’s discretion as she seeks to determine the child’s best interests.”
Recent Cases
On the other hand, in the more recent 2018 case of Mader v. McCormick (2018 ONCA 340), the same Ontario Court of Appeal held (at para. 13):
“This remedy [appointing a lawyer for the children] should not be available only for the asking… It can cause untold harm to impressionable children who may feel suddenly inappropriately empowered against their parents…”
Accordingly, while seemingly a good idea, Voice of the Child input regarding decisions on the custody and parenting of children is not universally accepted by the Courts.
Best Interests of the Child
● Best Interests of the Child – It is well-known that the end of the day, bottom-line principle Courts use in making decisions regard custody and parenting time of children is what is in the best interests of the child(ren). Section 16(8) of the Divorce Act of Canada states that, in making decisions regard access to children, the Court must take into consideration only to the best interest of the child (as determined by the condition, means, needs and other circumstances of the child). Similarly, Section 18(1) of the Family Law Act of Alberta states that in making such decision, the court shall take into consideration only the best interest of the child (then proceeds to set out some 11 general factors to try to help determine what that is). Fortunately, the Provincial Court of Alberta in the recent case of RB v. SB (2018 ABPC 186) has adopted the findings of the New Brunswick Court of Queen’s Benchin Shaw v. Shaw (1997 NBJ 211) which set out some very specific factors the Courts should look at to determine what is in the best interests of the child, namely (at para. 129):
1. Which parent offers the most stability as a family unit;
2. Does the evidence disclose a more substantial bonding between the child and one parent or the other;
3. Which parent appears most prepared to communicate in a mature and responsible manner with the other parent;
4. Which parent is more able to set aside personal animosity and be generous with access arrangements;
5. Which parent shows promise of being an appropriate role model for the children and exhibits a sense of values and direction;
6. Which parent is more prepared to broaden the scope of the child’s life with learning, associations and challenges;
7. Are the extended families on either side polarized or are they generous of attitude with the opposite parent;
8. Which parent provides the best cushion for the child against the stress of breakdown of the marriage;
9. Does a child have physical or mental problems that require special attention and care, e.g. attention deficit disorder or asthma;
10. Does one parent or the other play mind games with a child and carelessly expose the child to domestic turmoil;
11. Where will the overall long term intellectual and security interests of the child best be served;
12. Will there be material provisions that meet at least minimal standards;
13. Which parent appears most prepared to give priority to the children’s best interests over and above his or her own;
14. Which parent exhibits the most maturity and ability to accept and deal with responsibility;
15. Does either parent appear more prone to litigate than communicate or negotiate;
16. Is there a positive or negative effect with respect to the involvement of third parties with either parent on the welfare of the child and is it financial or emotional and does it affect the living accommodations;
17. In consideration of the potential for joint custody, does the evidence reveal a couple with the maturity, self-control, ability, will and communication skills to make proper joint decision about their children.
What do the Courts look at?
Calgary Top 5 Parenting Time 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 the law on the principle of maximum contact with both parents in winning the case of Young v. Young at the Supreme Court of Canada.
Mediated Agreement
Calgary Top 5 Parenting Time 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
