FAMILY | When is Shared Parenting Appropriate?

• Author: Dargatz, Sarah

September 1, 2020By Sarah Dargatz

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.

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...