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When the parents of a child separate, they must make decisions about where the child should live on a day-to-day basis. Many parents prefer some form of “shared parenting” which usually means that each parent has day-to-day care of the child at least 40% of the time. However, shared parenting is not right for all families. In some cases, it’s best for one parent to care for the child more of the time.
Under Canadian family law, decisions about a parenting schedule are based on what is in the best interests of the child. The new Divorce Act, likely coming into force in March 2021, will include a list of factors that judges must consider when determining what is in a child’s best interests. Many provincial family laws, such as Alberta’s Family Law Act, already include a list of factors.
Factors that a judge must consider when determining what is in a child’s best interests include:
- a child’s needs, including their need for stability
- a child’s nature and strength of relationship with each parent and other significant people
- the history of care
- a parent’s plans for the future
- the child’s view, where they can be ascertained, and where appropriate to consider given the child’s age and maturity
- the child’s cultural and religious upbringing
- a parent’s willingness and ability to support the child’s relationship with the other parent
- a parent’s willingness and ability to communicate and cooperate with the other parent about the child and
- any family violence.
What the legislation does not do, however, is dictate how a judge will weigh each of these factors. The law does not say what outcome is appropriate given a certain factor or constellation of factors.
Under Canadian family law, decisions about a parenting schedule are based on what is in the best interests of the child. Judges consider the factors of a particular case and what outcome the judge considers to be in the child’s best interests, based on those factors. These decisions published by the court establish “caselaw” and “precedent” that other judges apply to subsequent cases.
Recently, Justice Lema of the Court of Queen’s Bench of Alberta (in CAS v NPC, 2020 ABQB 421) reviewed the Alberta caselaw regarding factors that tended to support an order of shared parenting and those factors that tended to demonstrate when shared parenting would not be in a child’s best interests. His survey of factors is helpful. The case is worth a read for those struggling with this question.
Some of the factors that judges have determined support shared parenting include:
- both parties being capable and engaged parents
- good communication between the parents
- each parent loving the child and “no evidence that [the child] will not be properly cared for with all their needs being met in the care of each parent”
- adequate proposed work and child-care arrangements from the parents, even if one parent’s plan is less developed than the other’s
- a history of shared parenting
- parents having different and important interests and capabilities to pass on to their children
- shared parenting would enhancing a child’s contact with a parent’s cultural or linguistic background
- children have spent significant time with, and have strong attachments to, both parents
- children prefer shared parenting
- increased contact with half-siblings and other family members
- practical considerations such as manageable driving time between parental residences and school and the availability of child care and
- where there is a parenting assessment from a qualified psychologist recommending shared parenting.
The law does not say what outcome is appropriate given a certain factor or constellation of factors.Factors signaling against shared parenting include:
- parents’ inabilities to put their children’s interests ahead of their own to such a degree that regular cooperation and coordination in scheduling is impossible
- the parties being and having been in “substantial conflict” and lacking a “genuine willingness to work together to ensure the success of a shared-parenting arrangement”
- where separation of the child from their primary caregiver, particularly at a young age, may be emotionally and developmentally disruptive for the child
- one parent’s possible serious alcohol dependency
- medical evidence suggesting no major changes to routines of seriously disabled child
- a parent’s frequent violence and angry outbursts against child
- child at risk of serious psychological problems
- one parent’s residential and new-relationships instability
- the absence of definite plans for where the parent would live with the child or where they would go to school
- the opposed-to-shared-parenting opinions of the child, ascertained by a parenting expert
- one parent’s move making it “impossible to continue with the alternating week parenting schedule” and
- practical considerations such as the distance between parents’ residences making shared parenting impractical.
Justice Lema notes that determining what is in a child’s best interests is not a “box-checking exercise”. He writes:
Determining a child’s best interests is not simply a matter of scoring each parent on a generic list of factors. Each case must be decided on the evidence presented. The listed factors [in one case] merely serve as indicia of the best interests of the child. By their very nature, custody and access applications are fact-specific. The listed factors may, therefore, expand, contract, or vary, depending on the circumstances of the particular case as manifested by the totality of the evidence. Courts must approach each decision with great care and caution.
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