CHILD CUSTODY AND PARENTING TIME
When married spouses decide to separate and start a divorce action, the parenting of the child(ren) is governed by the provisions of the federal Divorce Act. The interests of the child(ren) are placed before those of their parents. On separation, it is critically important that suitable arrangements be made respecting the parenting of the child(ren). If the parents cannot agree on their own parenting arrangements then the Court will do so and give primary consideration to the physical, psychological, and emotional safety, security, and well-being of the child(ren). In determining the best interests of the child(ren) the Court must consider all of the following factors relating to the circumstances of the child(ren).
These factors are as follows:
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
- (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
- (b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
- (c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
- (d) the history of care of the child;
- (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
- (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- (g) any plans for the child’s care;
- (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
- (i) 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;
- (j) any family violence and its impact on, among other things,
- (i) the ability and willingness of any person who engaged in family violence to care for and meet the needs of the child, and
- (ii) the appropriateness of making an Order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
- (k) any civil or criminal proceeding, Order, condition, or measure that is relevant to the safety, security, and well-being of the child.
When considering the impact of any family violence under the above-noted Section 16(3)(j), the Court must take into account the factors found in Section 16(4)(a)-(h) of the Divorce Act below:
Importantly, the Court shall not take into account the past conduct (misconduct) of any person unless the conduct is relevant to the exercise of their parenting time or decision-making responsibility.
In allocating parenting time the Court must give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
The Divorce Act now distinguishes between parenting time and decision-making responsibility. Parenting time may be allocated by way of a schedule. When parenting time is allocated to a person, that person has exclusive authority to make day-to-day decisions that affect the child during that time. The Court may also allocate decision-making responsibility in respect of a child to a parent or a person who stands or intends to stand in the position of a parent (in loco parentis).
The Divorce Act does, in certain circumstances, provide that a non spouse may make an application for contact between that person and a child of the marriage. However, in order for a contact application to be made, the person must first apply to the Court for permission to make such an application for contact. In determining whether a contact order should be made, the Court shall consider all relevant factors including whether contact could occur during the parenting time of another person such as one of the parents.
Parties are encouraged to develop their own parenting plan which may include parenting time, decision-making responsibility, or contact. The Court shall include such a parenting plan in a parenting or contact order unless it is not in the best interest of the child to do so, in which case it may make modifications to the parenting plan that it considers appropriate, and the plan, as modified, may be put into an Order.
Remember that children do benefit most from the love and care of both of the parents regardless of who was more involved during the marriage. Often the breadwinner may have been away from the home more than the other spouse to support the family. The decision to have a stay-at-home parent was made by both parents as that was considered to be best for the children at the time. On separation that should not, and does not, relegate that working spouse to a second-class parent. Separation is a new and different part of a parent’s and a child’s life. Do not let the emotional pain of a separation or anger towards the other spouse be inflicted upon the children who are the innocent bystanders in the decision to separate. Separation is not the decision of the children. Look at the parenting decisions through the eyes of your children and make the parenting plan consistent with what is best for them. When dealing with a separation, research indicates that children can suffer psychological damage in the form of trauma, anxiety, depression, and personality disorders due to feelings of separation and abandonment. Especially where one parent refuses to allow the other parent to be involved in the lives of the children.
Parliament has steered away from the terms “child custody and access”. Nowadays, due to relatively recent changes to the Divorce Act, the legislation speaks in terms of parenting. So long as each parent is reasonably fit to care for the children, regardless of their faults, as alleged by the other spouse, the Courts will steer towards a shared parenting arrangement. Allegations by a mother that the father was not involved with the children must be balanced by the previous employment obligations of the father in providing economic security for the family while it was intact. Primary residential care (or sole custody as it used to be referred to) may be implemented where the distances between the parents do not allow for shared parenting or if contact with the other parent is unhealthy or unsafe.
A shared parenting arrangement applies where a child resides with a parent for more than 40% of the time. The parent will make the day-to-day decisions while the child is in their respective care and each parent has the authority to make important decisions respecting the child. Child support in a shared parenting arrangement is dealt with pursuant to Section 9 of the Alberta or Federal Child Support guidelines which involves a set off of the child support based on their gross incomes and table amounts, their increased costs based on a shared parenting regime and their conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
Child Estrangement (formerly Parental Alienation Syndrome)
Child estrangement may be evidenced in the words or behavior of a child towards a parent. Where a child unreasonably expresses dislike, hatred, or unwillingness to spend time with one parent while showing a preference for the other parent, for no apparent reason, and following a separation, this may indicate that estrangement is happening. It is very damaging to the psychological health of a child. Resources are available to address such a situation. A parent’s vengeful, disparaging, vicious, hostile words and actions are often at the root of this estrangement. Children should not be exposed to this behavior and the Courts will take a very dim view of a parent engaging in this conduct. In some cases, the Court will remove the children from the care of the problematic parent.