When parents separate, how much time and how involved should each parent be with the children?

This is a challenging area for parents, lawyers, mediators, counselors, and judges to deal with because the parents’ wants and needs are sometimes different than the children’s wants, needs, and best interests. It is difficult for parents in conflict to avoid using the children in a prideful power struggle with the other parent. What can help separated and divorcing parents in agreeing to a custody arrangement that is best for the children?

What is the law on parenting and custody after separation and divorce?

The Divorce Act governs custody decisions made by the courts at divorce. The Divorce Act currently establishes that the best interests of the child are the paramount consideration in child custody cases. In other words, the rights of the parent are subordinate to the interests of the child. If unmarried parents separate, Alberta’s Family Law Act says that in all court decisions about guardianship and parenting, the court will only consider what is in the best interests of the child.

Bill C-560 was introduced as a private member’s bill to amend the Divorce Act to include the presumption that 50/50 or equal parenting time after separation is best, unless there is substantial evidence to show that unequal parenting time is better for the children. The proposed amendments focused on discouraging separated parents from relying so much on the courts to make parenting decisions, and promoted joint responsibility and joint decision making by parents in respect of ongoing child care, nurturing, and development. The Bill also emphasized that children’s interests are best served through maximal ongoing parental involvement with the child. However, it was defeated on May 28, 2014, because opponents of Bill C-560 thought that the proposed amendments would favour parental rights over children’s rights.

Is equal parenting presumed by the courts to be best for children?

A court is not obliged to assume that equal parenting is best for the children. The defeat of Bill C-560 shows that Parliament decided that the only perspective to foster outcomes that are best for children is to require that the courts and parents focus solely on the children’s interests in making decisions.

There are no pre-set rules or assumptions used by the courts when deciding what is best for children after parents separate or divorce. However, the following questions are commonly asked of parents by lawyers, mediators, and counselors when assisting parents after separation to determine a new custody arrangement (parenting time, involvement and decision making) that is best for the children:

• What are the child’s physical, psychological and emotional needs at their particular age and stage of development?
• What is the history of care for child?
• What is the child’s cultural, linguistic, religious and spiritual upbringing and heritage so far?
• What are the child’s views and preferences?
• Has there been any family violence, and if so, how has it affected the child?
• To what degree are the parents willing to cooperate on issues affecting the child?
• What is the nature, strength, and stability of the relationship between the child and other people living with the child and with each parent?
• To what degree is each parent able and willing to care for and meet the needs of the child?
• To what degree is each parent able and willing to cooperate with the other parent on issues affecting the child?
• How will the child benefit from maintaining a meaningful relationship with each parent?

It is up to parents to discuss, negotiate, mediate, collaborate, or if necessary litigate a custody arrangement that will be best for their children. The New Ways for Families Program, available in Medicine Hat, helps parents learn the skills they need to make these types of decisions themselves, rather than relying on the Courts. Bob Dechert, Parliamentary Secretary to the Minister of Justice has said:

Unfortunately, at times divorce is unavoidable and happens quite frequently in our society. However, rather than turning to the courts and other adversarial processes to find a neat and tidy solution to an otherwise complex and messy situation, our government has taken the approach of encouraging and supporting both sides to find a mutually agreed upon resolution themselves.

If a parent charges into court demanding equal parenting time and decision making only because it is fair to them as a parent, they are likely to be defeated. As the defeat of Bill C-560 shows, what is most important in these situations is not what is fair to them, but rather what is best for the children.