How can I get shared parenting after separation or divorce?

By Camille Boyer, Calgary family lawyer

Parenting issues are often the most highly disputed, emotionally charged, and stressful areas of family law for parents to navigate. In family law cases, the Court must make parenting decisions by assessing only what is in a child’s best interests. While this may sound simple, parents often have very different ideas about what is best for their child. Further, each family and each individual child is unique and presents different challenges when assessing what is in the best interests of a child. In practice, the application of the best interests test after a separation or divorce is highly nuanced and complex.

Parents in the midst of separation and divorce may enjoy indulging in the latest updates on celebrity custody battles, but there are also a number of famous couples who have managed to successfully co-parent with one another. While the stories of couples separating amicably and remaining friends, may not be as newsworthy as a juicy tabloid exposé, they do show newly separated parents that despite how bad the break-up was or how terrible things feel right now, there is hope. This is especially important where children are involved.

In my experience, disputes between parents after divorce and separation most often arise from one fundamental disagreement about their child’s post-separation parenting schedule; one parent wants shared parenting and the other does not agree and wants the child primarily in their care. In a shared parenting schedule, the parents share parenting time with the child between 40% and 60%. So this could be a 50/50 schedule, or 45/55, or 40/60. Often shared parenting is week on/week off, but it could also be 4 days/3 days or even an exchange of the child that follows a 2-2-3 schedule.

There is often a suspicion by one parent that the parent who is looking for shared parenting is just doing so to reduce their child support payments as child support in shared parenting can be paid on a set-off basis. A set-off of child support involves determining what each parent would pay in child support based on their own income and then whoever pays more pays the difference to the other parent.

The Alberta Court of Queen’s Bench recently released a decision which provides some of the factors that weigh for or against shared parenting. In CAS v NPC, 2020 ABQB 421, the Court emphasizes that there is no presumption in favor of any particular parenting arrangement, whether it is shared parenting or otherwise. The sole determining factor is the best interests of the child.

According to this family law case, some examples which may support shared parenting are: Both parties being capable and engaged parents;

  • Good communication between the parents;
  • No evidence that the child will not be properly cared for and have their needs met in the care of each parent;
  • Adequate work and childcare arrangements after separation;
  • A history of shared parenting by the parties;
  • The parents having important and different interests and capabilities to pass on to the child;
  • The child has spent significant time with the non-primary parent and has strong attachments to both parents;
  • The child has expressed a preference for shared parenting and is of an age and maturity level where such wishes should be considered;
  • A parenting assessment which recommends shared parenting;
  • If shared parenting enhances the child’s exposure to a parent’s cultural background;
  • If shared parenting increases the opportunity for the child to learn each parent’s first language;
  • The opportunity for increased time with half-siblings in shared parenting, particularly when the children are mid-to-late teen ages;
  • The opportunity for meaningful contact with other members of the child’s family, such as step-siblings;
  • If shared parenting allows a child to continue to attend the school where their friends are;
  • If there is nothing to suggest that a parent is unfit, harmful, or neglectful;
  • A parent’s unique ability to assist a child with disabilities;
  • Both parents having an appropriate residence for the child;
  • Maintaining a close relationship with grandparents who have been involved in childcare;
  • The ability of the parents to easily adapt to shared parenting;
  • If shared parenting allows the primary parent some relief from the child in order to pursue career or educational opportunities;
  • A manageable driving time between both parents’ residences;
  • Where the only objections to shared parenting are that the change would be difficult or that the other parent can be difficult, positive factors about shared parenting will outweigh these issues;
  • If shared parenting can mitigate or neutralize bickering, hostility, and communication difficulty;
  • If the historical primary parent has attempted to thwart the other parent’s involvement and time with the child;
  • A parent and their new partner providing a loving home for the child;
  • The parent who has historically not been the primary caregiver having a flexible work schedule or is able to work from home;
  • If both parents rely on third party childcare during their parenting time; and
  • On an interim basis, where the parents appeared to have done shared parenting following separation.

The court in this family law case also outlined some examples of circumstances which would go against shared parenting including:

  • The parents are unable to put the child’s interests ahead of their own to such a degree that regular cooperation and coordination is impossible;
  • The parents are in substantial conflict and lack a genuine willingness to work together to ensure the success of shared parenting;
  • Where the separation of the child from their historical primary caregiver, particularly at a young age, may be emotionally and developmentally disruptive for the child;
  • A parent’s frequent violence and angry outbursts against the child;
  • A child feeling the need to disparage a parent;
  • A child at risk of serious psychological problems;
  • One parent’s instability in a new relationship, or instability of their residence, coupled with a lack of information about childcare during their parenting time;
  • A parent proposing that each enroll the child in separate activities, to be pursued only with the enrolling parent;
  • A heavier reliance on third-party caregivers by the historical non-primary parent, whereas the historical primary parent can be flexible or work from home;
  • Absence of a clear residential custody and school plan for the child in a shared parenting schedule;
  • The child has expressed opposition to shared parenting and is of an age and maturity level where such wishes should be considered;
  • One parent’s relocation no longer makes it possible to share parenting time;
  • Where travel between the homes makes shared parenting impractical, particularly once the child is starting in extracurricular activities;
  • The historical non-primary parent has not provided stability and predictability for the child, including repeated failures to exercise access with the child;
  • If there is a significant disagreement on the evidence then shared parenting may not be ordered on an interim basis before a trial.
  • If one parent who previously had shared parenting was then absent from the child’s life for a significant period of time;
  • If the historical non-primary parent’s evidence is lacking on the strength or importance of the relationship with the child and any special needs accommodations for the child, or school attendance commitments;
  • The historical non-primary parent lacks a residence that can accommodate the children;
  • Serious drug or alcohol dependency of a parent;
  • A parent’s failure to demonstrate a healthy and safe home environment; and
  • The impact of a child being separated from siblings, a child witnessing domestic violence, or a child who is struggling in school.

It is crucial to keep in mind that the foregoing list provides only a few examples of factors which may weigh for or against shared parenting. There are other factors that can come into play as well and each case will depend on its unique circumstances, as every family and every child is different. Moreover, even if shared parenting is found to be in a child’s best interests, the Court may want to come up with a transition plan to slowly and gradually reach shared parenting time.

As parenting and custody disputes are extremely important and complex areas of family law, we encourage all separating or divorcing parents to consider speaking with a family lawyer as soon as possible. Decisions made shortly after separation can have impacts on the parenting schedule for years to come. If you are going through a separation or divorce, our top rated family lawyers can give you advice in person or remotely by video call anywhere in Alberta or BC. Contact Crossroads Law now for your free consultation. 

The information contained in this blog is not legal advice and should not be construed as legal advice on any subject. The information provided in this blog is for informational purposes only.