What is the concept of the Friendly Parent and Child Parenting Disputes? In today’s MacLean Law Family Blog, Peter Graburn, senior family lawyer in our Calgary Alberta office, explains this key concept.
The “Friendly Parent” Principle – Do’s and Don’ts 1 877 602 9900.
Separation and divorce can be difficult. Not only do you need to deal with the emotional aspects of a family breakup, you also have to deal with many (sometimes seemingly strange) legal principles applied to resolve these disputes, particularly when dealing with parenting. In a previous article (see: Top 5 Parenting Time Principles , we discussed some of the (often competing) legal principles to be considered when resolving disputes regarding the parenting of children, including:
► Maximum Contact with Each Parent – the basis for shared parenting;
► Incremental Increases in Parenting Time – not going from “0 to 60” overnight;
► Short, Frequent Contact with Each Parent – similar to pre-separation;
► Voice of the Child – a ‘voice, but not a choice’ by the child, and;
► Best Interests of the Child – the ultimate test in resolving parenting disputes.
BC and Alberta Friendly Parent and Child Parenting Disputes 1 877 602 9900.
There are (of course!) other legal principles that are often applied when trying to resolve disputes regarding parenting of children. One of these is the “friendly parent” principle. So what is the impact for being found to be the friendly parent in Friendly Parent and Child Parenting Disputes?
“Friendly Parent” Principle
Simply put, the “friendly parent” principle states that in making decisions regarding the parenting of children (ie. primary care, parenting time, etc.), decision-makers (Judges and Arbitrators) should prefer the parent who is more likely to support and encourage the child(ren)’s relationship with the other parent. But, of course, it’s not always that simple.
Section 16 of the Divorce Act provides that in making a determination regarding the parenting of children:
16(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Sub-Section 16(3) then goes on to list numerous factors that are to be considered in determining the best interests of the child, including:
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse [previously, ss. 16(10) referred to the parent’s willingness to facilitate contact with the other parent], and;
(h) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
These specific provisions under the Divorce Act are what has given rise to the principle known as the “friendly parent” rule.
Federal Government Discussions of the concept can be found here.
But what guidance have the Alberta Courts provided regarding this principle, and what are some of the specific actions a parent can take to show a willingness to support the child(ren)’s relationship with the other parent and cooperate with the other parent to co-parent their children? This has not been that clear.
Caselaw -Friendly Parent and Child Parenting Disputes 1 877 602 9900.
In one of the most descriptive references to the “friendly parent” rule, Alberta Court of Queen’s Bench Justice W.N. Renke stated [see: AE. v. TE (2017 ABQB 449) at para. 29)]:
“As set out in s.16(10) (of the old Divorce Act), “a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, [the court] shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.” This is the “friendly parent” rule. According to Justice Sheila Martin, as she then was, in RVM v WFL (citation omitted):
Maximum contact with both parents is to be encouraged, and … the courts are likely to favour the friendly parent, that is the parent who will help to encourage contact between the child and the other parent. The “friendly parent rule” … has served to favour parents who are best able to foster a relationship between the child and the non-custodial parent (citations omitted)…
This “rule” concerns the degree of cooperativeness in co-parenting of each of the parents (emphasis added).”
Do’s and Don’ts 1 877 602 9900.
But what are some of the specific examples of demonstrating support for the child(ren)’s relationship with the other parent? The Courts have not been that forthcoming with listing these examples and factors, but some of the Do’s and Don’ts may include:
► criticize the other parent in the presence of the child;
► alienate the child from the other parent;
► breach Court Orders;
► file false charges (ie. of abuse);
►co-operate in scheduling parenting time, activities and exchanges;
►communicate positively with the other parent (verbally and electronically);
►encourage involvement with the other parent (even if the child is reluctant);
►educate yourself on best parenting practices (including taking the Parenting After Separation and Focus on Communication courses), and;
► consult with your lawyer before taking drastic actions.
Final Takeaway Friendly Parent and Child Parenting Disputes 1 877 602 9900.
The “friendly parent” principle. Is it as nebulous as the “best interests of the child” test? Maybe. But it shouldn’t be. Not everyone agrees with the “friendly parent” principle (see: “The Friendly Parent” Concept: a Flawed Factor for Child Custody – Dore, Margaret K. (2004) Loyola Journal of Public Interest Law, Vol. 6), arguing that it may: conceal family violence and other concerns; favour fathers over mothers, and; increase litigation (rather than decreasing family conflict) by introducing further uncertainty into parenting decisions.
But aside from being yet another legal principle applied by the Courts when resolving parenting disputes, the “friendly parent” principle could be the basis of a plan for co-parenting of children by separated parents, including trying to:
► look at parenting matters from the child’s perspective (thru their eyes), and;
► go overboard to be the friendly parent (even though it may be hard).
The “friendly parent” principle. One more “child-focused” parenting principle used to resolve parenting disputes. While it may be difficult to accept and apply in the short-run, in the long-run, it will benefit both you and your child.