Rights of a Parent

Shared 50/50 parenting is the ideal in most Divorce cases but unfortunately, despite two loving and capable parents, the Courts can be hesitant to grant it. This article will look at what factors Courts consider when making Contact Orders and what you can do as a parent to help the Judge sees things your way.

PT v LM

In a recent case, PT v LM 2018 ABQB 369, Mom had been the primary caregiver to R since birth, Dad was found by the Court to have “genuine love and concern for R” (para 52) and both parents were ruled to be able to care for R. Dad tried to argue that having 50/50 shared custody of his daughter, R, was “his right” and “what is fair”. Justice Topolniski denied his application and granted him alternating weeks of three-day weekends and Wednesday evenings. The Judge’s reasons were based mostly on the lack of cooperation between Mom and Dad, with most of the fault falling on Dad. He referenced events such as an Emergency Protection Order (EPO) granted to Mom, missing scheduled telephone calls with R, extending a vacation with R without Moms knowledge or consent, becoming outraged after the Court granted Mom permission to travel after Dad has unreasonably withheld consent, and refusing to work on communication and co-parenting with Mom and a professional.

Dad was correct in his claim that parents have rights. However, he was mistaken as to what the rights given to parents are. There is no presumption of 50/50 parenting. Parents are given the right to information under the Divorce Act, and more detailed rights in Alberta’s Family Law Act, called entitlements, responsibilities and powers. Dad was also mistaken in his presumption that these rights are absolute. The Court has the power to limit or remove the rights given to parent if they believe that doing so is in the child’s Best Interests.

Best Interests of the Child

The Divorce Act elaborates on the “Best Interests of the Child” principle by telling the Court to consider the “condition, means, needs and other circumstances of the child”. The Alberta Family Law Act provides a more detailed definition and list of factors to consider when trying to determine the Best Interests of the Child at section 18. The factors ask the Court to look at both the relationship of the child with their parents, and the relationship between the parents. It is just as important to the Court that you can get along with your ex and make decisions regarding your child as it is that you care for and love your child.

Parent's Rights

The Court will use its determination of the Best Interests of the Child to modify the rights of a parent. Under the Divorce Act a parent who does not have primary custody still has the “right to make inquiries, and be given information, as to the health, education and welfare of the child”. The Alberta Family Law Act lays out the rights of a parent in more depth in section 21. In Alberta a guardian’s rights are broken up in to powers, responsibilities, and entitlements. These rights can be exercised by guardians unless the Court orders otherwise. An overarching theme is that Guardians are required to get along with each other and provide information about the child when requested to do so by other guardians.

A guardian is entitled to “be informed of and consulted about and to make all significant decisions affecting the child” and to have sufficient contact with the child to carry out their powers and responsibilities.

A guardian has a responsibility to “nurture the child’s physical, psychological and emotional development and to guide the child towards independent adulthood” and “to ensure the child has the necessaries of life, including medical care, food, clothing and shelter.”

Guardians have the power to make decisions for the child, including, day to day activities, where they live, what type of education they receive, what culture they participate in, what language they speak, what religion they practice, who they live with, and where they work. Guardians can also give consent to medical treatment or any other situation where consent is required, receive information about the child’s health and education and “exercise any other powers reasonably necessary to carry out the responsibilities of guardianship”.

Orders

Parenting Orders specify what rights each parent has with regards to the children, while Contact Orders specify who the child spends time with.

In PT v LM the Court decided that it was in R’s best interest to have one person making decisions for her and that Mom was the best person for the job. If they had granted 50/50 parenting like Dad had asked, it would have been too difficult for Mom and Dad to make decisions for R and coordinate her activities. The Judge did leave open the possibility for a different parenting arrangement in the future. If Dad were to show that he can be reliable in his time with R, and communicate effectively with Mom the Court might be less hesitant to award shared parenting.

In conclusion, if you have a child and are separating or divorcing from their other parent the Court will consider both your relationship with your ex, and your relationship with your child when making decisions and determining what is in your child’s best interests.

Tips

Here are some tips to keep in mind if you are in a custody dispute.

1. Be a good parent. Spend quality time with your child whenever you have the opportunity. Keep your promises, pick them up on time and drop them off on time. Don’t vent your frustrations about your ex in front of them or use them to carry messages.
2. Be a good partner to your ex. Follow the Courts Orders, be civil, answer their requests for information politely and don’t make a scene, especially in front of the child. It may be helpful to use a co-parenting tool to help with communication and scheduling. There are apps and programs available, you could follow guidelines laid out for other parents by judges such as Appendix A in PT v LM, or you could meet with a professional and work out your own system. There are professionals who specialize in co-parenting.
3. Refer to the child as “ours”, not “mine”. This is a pet peeve of many judges and they will notice.