Family Law / Divorce Library

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Parenting time

Parenting time

Except where there is also a Relocation or Abduction, the only test that the courts consider in relation to parenting time is what is in the Best Interests of the child.

The parenting time status quo usually won't be changed by the courts without either a trial/hearing with live witnesses, or where there is urgency or "seriously compelling circumstances" (Shwaykosky v Pattison, 2015 ABCA 337 at para 6; DB v RB, 1996 ABCA 248).

Courts no longer follow the "tender years doctrine", which used to mean that young children should always reside primarily with their mothers (Hamilton v Leach, 2013 ABCA 423). The only test is still what is in the Best Interests of the child. For younger children, in order to build attachments, frequency of interaction can be more important than volume of parenting time. For example, seeing a child every couple of days rather than every second weekend.

Where parents are married, there is what used to be called a "maximum contact principle" which still states that courts should grant as much contact with each parent as is consistent with the best interests of the child. Practically, because this principle is subject to the child's Best Interests, it is rarely a significant factor in the court's decision. This principle does not necessarily mean equal parenting time, the welfare of the child dominates (Witherly v Witherly, 2017 ABCA 213 at para 9). However, courts must still consider this principle (DAF v SRG, 2020 ABCA 25 at para 20).


Children's views

Children don't get to choose where they lived until they reach 18 years of age.

Children don’t have the right to decide unilaterally what’s in their bests interests or to be the sole determiners of where or with whom they should live (Hartley v. Del Pero, 2017 ABQB 1 at para 47; T(C) v. T(M), 2016 ABQB 556).

A child’s views and preferences are to be considered as one factor in determining both custody and access (The United Nations Convention of the Rights of the Child).

Children's views become more important as they get older. For example, courts often defer to strong wishes expressed by 16 and 17-year-olds.

Courts will also look at the children's reasons. Do they like a residence because there are no rules, or because they have been pressured?

Where financial resources permit and there is disagreement about a child's preferences, courts prefer to have a psychologist prepare a report, called a Voice of the Child Report. In some circumstances, especially where there have been frequent changes to parenting time or high conflict, courts may appoint a lawyer to represent the child. Legal Aid can provide representation for children regardless of the parents' assets or income. In extremely rare circumstances, the judge might interview a child.

Different forms of parenting time

Shared parenting is where parents have equal or near equal parenting time. Shared parenting has become the most common parenting arrangement in Canada. Read more about Shared Parenting to learn when is and isn't appropriate.

We used to refer to a parent with a substantial majority of parenting time as having primary care, and the other parent having access (for example, access every second weekend). Those terms have fallen out of favour, the 2020 Divorce Act amendments now only uses the term parenting time.

Split parenting is where at least one child lives primarily with one parent, and at least one other child resides primarily with the other parent. It is often inappropriate to split up siblings. Split parenting tends to happen more often with older children who either don't have a close relationship or experience significant conflict.

Nesting is where the children stay in one house, and the parents take turns living in that house, but when they're not parenting they're living elsewhere. This is a very impractical and rare arrangement. There usually needs to be three residences. Nesting means either a lot of packing and unpacking, or having enough trust to leave your belongings with your former partner during their parenting time.

Parallel Parenting

Parallel parenting is usually a very structured and detailed parenting plan, order, or agreement.

In parallel parenting, we intend to set out enough rules such that less contact between parents can assist them to disengage and form independent day-to-day routines.

Parallel parenting can also reduce the children's exposure to conflict.

In the best case scenario, it can gradually restore trust and cooperation after distancing parents from conflict.

Supervised parenting and restricted access

In extreme circumstances, courts can order that a third party supervise parenting time, or other conditions such as drug testing prior to parenting time. In the rarest of extreme circumstances, parenting time might be terminated, although even then usually only temporarily.

These types of conditions are usually meant to be temporary, until the court is satisfied that there is no issue or the court's concerns have been addressed.

The third party supervisor might be a friend or family member, however in extreme circumstances professional supervisors can be hired.

An example of what a court might consider (Ontario decision VSJ v LJG, 2004 CanLII 17126 (ON SC) cited in MJF v SDE, 2019 ABPC 287, and Koohzad v Raimondi, 2018 ABPC 183):

  1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear;
  2. History of violence;
  3. Unpredictable, uncontrollable behaviour;
  4. Alcohol or drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being;
  5. Extreme parental alienation (which has resulted in changes of custody and, at times, no access orders to the former custodial parent);
  6. Ongoing severe denigration of the other parent
  7. Lack of relationship or attachment between non-custodial parent and child;
  8. Neglect or abuse to a child on the access visits; or
  9. Older children's wishes and preferences to terminate access.

Withholding and Denying Parenting Time

If there is no court order in place, then in the face of denied parenting time, an application to the court for a parenting order should be made.

While parents cooperating is often preferred, except in cases of serious risk of harm to children, parents generally don't get to control what happens in the other parent's household. "Gatekeeping" is imposing unreasonably excessive or extreme parenting conditions. For example, where a parent states that they won't permit parenting time unless the other parent feeds the children an organic diet.

Documentation and records are important. Back-up text messages and emails. Keep a calendar (pre-printed calendar from a store, not loose leaf) to record when parenting time was denied or shortened, or conversely, what times parenting time did occur.

Where a child has been unilaterally moved to or withheld in another country, the Hague Convention on International Child Abduction can be used for the prompt return of children.

Alienation is unreasonably pressuring a child to reject their relationship with the other parent. A variety of court orders to combat alienation are available (see Alienation).

Where there are allegations of child sexual abuse, parents must follow Family Law Practice Note 5

Where a parent has committed serious breaches of a court order, the other parent might:

  1. Apply to declare them in contempt of court. A contempt finding can lead to fines or potentially even imprisonment. However, the legal test to make out contempt of court is very difficult to make out, and courts are reluctant to impose fines or jail in relation to parenting disputes. Instead, the below strategies are more effective.
  2. For unmarried parents, the Family Law Act (Alberta) permits compensatory time, reimbursement for expenses, daily penalties, imprisonment, a police enforcement clause, or anything else the court considers appropriate in the circumstances that is intended to induce compliance.
  3. Apply for make-up time or increase time, to make up for time wrongfully lost.
  4. Seek to impose parenting conditions upon the wrongful parent. For example, that they lose parenting time whenever your time is missed, that their parenting time is forfeit if they're more than 15 minutes late without notifying you in advance, that a third party perform exchanges, that who performs the pick-up/drop-off are switched, or in extreme circumstances, that you become the primary caregiver to the children.
  5. In extreme circumstances, a police enforcement clause is a paragraph in a court order that permits the police to assist with enforcing parenting time. However, courts are very recultant to allow the use of these paragraphs (Craig v Craig, 2019 ABQB 375), as involving the police can be traumatic to children, may not address underlying issues, and can increase conflict.

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Content by Ken Proudman of BARR LLP (Edmonton)

Last updated on November 13, 2022

Last complete review of all content on this page on November 11, 2022

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