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Overnight Child Parenting Time

Overnight Child Parenting Time lawyers at MacLean Law act across Canada with offices across BC and in Calgary and Toronto.

In today’s blog senior Calgary associate, Peter Graburn explains decisions in this area from across Canada. Parenting capacity and an individualized assessment of the child’s temperament are key. Clearly, the more involved each parent has been before relationship breakdown, the more comfortable and child will be with both parents.

Overnight Child Parenting Time 1 877 602 9900

Family law is complicated as it must often combine both legal principles and common-sense practicalities. The issue of overnight child parenting time of very young children highlights this dynamic.  

In principle, it is generally accepted that it is in the best interests of children that they have as much contact with both parents as possible. Issues of attachment (ie. the creation and strengthening of the child’s feelings of trust and security) to both parents and the safety of the child are paramount. Practically, however, newborn and very young children cannot spend much time away from their nursing mothers without making alternate arrangements for feeding.  

But aside from the issue of breastfeeding, at what age should very young children start to spend larger periods of time (ie. overnights) with their non-primary care parent (usually the father) to start to build that relationship of attachment? The psychological and child-development research varies greatly on this issue. Some say young children should not have overnight parenting time with their non-primary care parent until they have the language ability and sense of time to be able to express their feelings about their change in environment and routine (about 2-3 years of age some say 4) (see William F. Hodges’ guidelines). Here, frequent day-visits with the non-primary care parent are recommended instead. Others say children can have overnights much earlier (see Dr. Richard Warshak’s  and Joan Kelly studies), particularly where the non-primary care parent has had a full and active “hands on” role in the raising of the child up to the time of separation. In a 2016 Arizona State University study the author’s concluded:

Contrary to some previous findings, the current study found benefits to both parent-child relationships associated with overnights (a) up to and including equal numbers of overnights at both parents’ homes, (b) for both the long-term mother-child and father-child relationships, and (c) both when children were 2 years old, as well as when they were under 1 year of age.

In fact, Lorne MacLean, QC obtained an Alberta Queen’s Bench ruling giving the father week on/ week off parenting time of a 1 year old although the mother was breastfeeding.

Overnight Child Parenting Time
Peter Graburn, senior Calgary  lawyer at MacLean Law

Overnight Child Custody 1 877 602 9900

 

But what do the Courts say about when a non-primary care parent can start to have overnight parenting time with their very young children? This situation was recently characterized in the Alberta case of Salehi v. Babrak (2017 ABQB 317), where Court of Queen’s Bench Justice Veit stated (at para.’s 2-5):

“It is obvious from the mother’s parenting position in the Provincial Court that she has no principled objection to the father having overnight access to the two older children; her position relative to the youngest child was presumably taken because of that child’s young age at the time.”

In the Newfoundland case of Squires v. Smith (2015 NLTD(F)6, confirmed on appeal 2015 NLCA 25), the Newfoundland and Labrador Supreme Court granted a father working off-shore on a 3-weeks on / 3-weeks off rotation three (3) hours of parenting time every day during his time at home until the child was 1-year old, after which the father would have one (1) overnight access to the child each week when at home. 

Finally, in the more recent Ontario case of Zubaid-Ahmed v. Butt (2017 ONSC 3156), the Ontario Superior Court of Justice granted the father two (2) overnight visits per week (Thursdays and Sundays – the mother had agreed with the Sundays) with his 15-month old son primarily so the father could take the child to Friday morning prayers, finding (at para’s 38 – 41):

“This court is of the view that it would be in Zaki’s best interests to spend more parenting time with his Father and his Father’s family. In addition, the Father will be able to take Zaki to Friday prayers which is important to the Father for Zaki’s upbringing.  I see no reason this cannot and should not be accommodated. This additional parenting time for the Father would also result in a greater and stronger relationship between Zaki and his Father, one of the factors this court is mandated to consider.  I am satisfied that the Father’s proposed parenting time is in Zaki’s best interests.”

Vancouver Overnight Child Parenting Time 1 877 602 9900

There is a great discrepancy of opinion over when overnight parenting of the non-primary care parent (usually the father) of very young children should start, both by professionals and often the parents. Both parents usually want to maximize their opportunity to care for and bond with their child. When this disagreement cannot be resolved between the parents, the Courts may be asked to determine what parenting schedule (including when overnights should start) is in the “best interests of the child”. But the Courts have been hesitant to set firm timelines or guidelines for this, preferring to determine each case on its own. That does not mean, however, that individual Courts do not apply “rules of thumb” developed over time to their decisions in this area.

Key Takeaway from MacLean Law Family Lawyers

So is there a specific age when a non-primary care parent can have overnight parenting time with their very young child(ren) (ie. a “Rule of 4”) – no.  Clearly, forming a bond (attachment) with both parents is important and “in the best interests” of the child. However, what may be more important for developing this bond than simply setting overnight parenting time is the frequency, predictability, and quality of that parenting time with the child. 

Call us if you have a question concerning Overnight Child Parenting Time.