What is the difference between Shared Child Parenting vs Equal Parenting Time? In today’s blog, Peter Graburn, senior Calgary family lawyer, sorts things out for you. MacLean Law has shared child parenting and equal child parenting time lawyers in several offices across Canada.
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Parenting time principles have changed significantly over the past 30 years. Fortunately, we are a long way from the “mother as primary caregiver / father as primary financial supporter” concept. More of a shared parenting regime under the maximum contact principle [see: Young v. Young, (1993, 4 SCR 3)] is now the norm. But recent changes to the federal Divorce Act have confirmed there is only one determinant in deciding parenting time of children, being what is “in their best interests”. Shared Parenting continues as the dominant principal in determining parenting time. But does this mean equally shared parenting time (ie. 50/50). Not necessarily.
“Shared Parenting” means any form of parenting where one parent has at least 40% of the parenting time. Shared Parenting can take many forms of scheduling [depending on the age and particular needs of the child(ren)]: ie. week-on / week-off; 2-2-3 rotation; 2-2-5-5 rotation, etc. But Shared Parenting is not automatic. In the recent case of CAS v. NPC (2020 ABQB 421), Alberta Court of Queen’s Bench Justice M.J. Lema set out certain factors mitigating in favour and against granting Shared Parenting, including (but not limited to):
Factors in favour of Shared Parenting (at para. 9):
● both parties being capable and engaged parents;
● good communication between the parents;
● no evidence the child(ren) will not be properly cared for;
● adequate proposed work and childcare arrangements, and;
● a history of shared parenting by the parties (both before and after separation);
Factors Against Shared Parenting (at para. 10):
● parents’ inabilities to put their children’s interests ahead of their own;
● the parties being and having been in “substantial conflict”, and;
● where separation of the child from their (historical) primary caregiver, particularly at a young age, may be emotionally and developmentally disruptive for the child, etc.
However, Justice Lema cautioned (at para. 11) that determining whether Shared Parenting was appropriate or not in any particular family situation “is not a box-checking exercise”.
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But does “Shared Parenting” time automatically mean “Equal Parenting” time? No, at least not in Alberta. In debates leading up to changes to the federal Divorce Act, proponents of the principle of Equal Parenting time [particularly fathers’ rights groups such as the Canadian Equal Parenting Council (CEPC) and the Canadian Association for Equality (CAFE)] advocated for a rebuttable presumption of Equal Parenting time to be included in the new (amended) legislation, without success.
But in Alberta, the law regarding Equal Parenting time has been (and remains) clear. In the 2016 case of Rensonnett v. Uttl (2016 ABQB 95)(upheld on appeal), Justice G.H Poelman of the Alberta Court of Queen’s Bench stated (at para. 203):
“Thus, as with the status quo, there is no presumption in favour of equal parenting time. In fact, the cases caution against equal parenting in high conflict relationships. Fraser C.J.A. held that “as a general proposition, joint custody and shared parenting arrangements ought not to be ordered where the parents are in substantial conflict with each other,” and joint custody requires a sincere and genuine willingness by both parents to work together to ensure the success of the arrangement…”
There Are No Child Custody Presumptions
More recently, in the case of LC v. KK (2021 ABPC 122) (April 12, 2021), Provincial Court of Alberta Judge P.G. Pharo stated (at para. 26):
“It must be stated that there are no presumptive starting points in parenting. There is no presumption in favour of equal parenting. There is also no presumption in favour of the custodial parent. There is no presumption in favour of the status quo: … There is no presumption in favour of maximum contact: … The only determinant is what is in the best interests of the child.”
Maximum Contact With Both Parents Is The Goal
There is no question that children benefit from significant involvement (ie. parenting time) with both parents. But does this have to mean equal time? Not necessarily. While equal (ie. 50/50) parenting time may be becoming almost the default position in many provinces in Canada, clearly this is not the case in Alberta. Shared Parenting (ie. more than 40% of the time) is not even automatically a default position. As the case-law confirms, there are no presumptions in Alberta when it comes to parenting time. The only test for determining parenting time in Alberta is what is “in the best interests of the child”.
New Divorce Act Wording For Child Custody
This nice summary from Legal Aid BC’s Family Law Group explians:
The Divorce Act uses these terms to describe the arrangements parents make for their children when they separate:
- Decision-making responsibility means making important decisions about your child’s well-being, including their healthcare, education, religion, culture, and language.
- Parenting time means the time a child spends in the care of a parent. It includes time when the parent is not present, such as when the child is at daycare or school.
Having decision-making responsibility and parenting time means:
the child is in your care at least some of the time,
you have the responsibility to make decisions about the child, and
you have the right to get information about the child’s well-being, including information about the child’s health and education.
If you have a question concerning whether primary residence parenting time or about Shared Child Parenting vs Equal Parenting Time, call our highly rated family lawyer in BC, Calgary or downtown Toronto.