Shared parenting, characterized by a parenting arrangement where neither party has the child or children for less than 40% of the time, is a vital aspect of post-separation childcare. When both parents have been significantly involved in the upbringing and care of their child(ren) before separation, but that involvement changes following separation, the parent experiencing reduced parenting time may seek a shared parenting regime through the courts. Such a regime enables both parents to continue playing a significant role in the post-separation care and decision-making for their child(ren), including the child(ren)’s residence with each parent.
In considering an application for shared parenting, the courts must carefully evaluate various factors that revolve around the “best interests” of the child(ren). These factors include the stability and security provided by each parent, the history of care, the strength of the relationship between the child and each parent, the ability of each parent to meet the child’s everyday needs, and the presence of any history of domestic violence or criminal charges.
However, what happens when a shared parenting regime is disrupted due to the actions of one parent? Recent case law in Alberta has shed light on this matter and established crucial precedents.
The court has made it clear that unilateral changes to a child’s residence by one parent, which detrimentally affects the child’s contact with the other parent following a relationship breakdown, is no longer an acceptable method to establish parenting arrangements. This position was highlighted in the cases of TRA v SAE, 2018 ABQB 50 at para 56, and Krause v Krause, 2018 ABCA 293 at para 15.
This statement by the court is significant as it provides an avenue for a parent who was previously involved in a shared parenting regime to seek a return to their prior situation. Additionally, in the case of Thember v King, 2019 ABQB 697 at para 10, the court emphasized the importance of not allowing the post-separation parenting arrangement and the delay in addressing parenting issues to unduly influence the ultimate decision on the matter.
The courts have demonstrated a willingness to allow parents to return to a shared parenting regime, even in situations where the actions of their former spouse or partner have disrupted the previously established arrangement. This approach reflects the court’s recognition of the importance of maintaining meaningful relationships between children and both parents, despite the challenges that may arise post-separation.
By prioritizing the best interests of the child(ren) and considering various factors relating to those interests, the court promotes the preservation and health of involved parental relationships, ultimately benefiting the child(ren) involved.
In summary, when determining whether to transition away from a previously shared parenting regime, the court in PDB v AJB, 2020 ABQB 298 summarized several factors in para 18:
- The paramount consideration is the best interests of the child or children involved.
- The existing parenting arrangement, including both the pre-and post-separation status quo, is assessed to gauge the “best interests” of the child(ren) in an interim parenting arrangement.
- The pre-separation status quo generally carries more significance as it represents a longer period of parenting and serves as the “baseline” for the family.
- A parent’s agreement, after separation, to a particular interim arrangement, should not be seen as a waiver of their right to seek a different, longer-term arrangement.
- The significance of the post-separation status quo may be diminished, especially if it was short-lived, the result of one parent’s unilateral decision (e.g., relocating with the child or children), or influenced by one parent’s reduced ability to parent following separation (e.g., arranging suitable accommodation and adjusting to work schedules).
- However, the longer the post-separation status quo persists, particularly beyond the initial adjustment period, the more significance it may acquire. For example, in the case of Sorensen v Cooney, both the chambers judge and the Court of Appeal focused exclusively on the post-separation period as it had lasted three years.
- In this context, a party may provide an explanation for any delay in seeking a parenting order, apart from mere agreement or acquiescence to a new status quo.
- Determining the status quo parenting during either period (pre-or post-separation) can be challenging, if not impossible, in a chambers setting due to conflicting evidence. In such cases, it may be minimized or even disregarded as a factor.
In conclusion, if you find yourself in a situation where you are seeking to return to a shared parenting regime, it is advisable to seek legal guidance. Our office is here to provide you with the necessary support and expertise to navigate the complexities of family law and advocate for the best interests of you and your child(ren). Contact our office today to discuss you case and the options available to you in pursuing a return to a shared parenting arrangement.