Family Law...Litigated Aspects of Shared Parenting

Shared Parenting (Part 2 of a 3 Part Series)

Christine Doucet – December 2016

My last blog post – the first of a three-part series on shared parenting (View Part 1) – focused on shared parenting agreements.  Parts 2 and 3 focus on the litigated aspects of shared parenting.  This post addresses the factors that courts consider in determining whether to order a shared parenting arrangement.  The next post will address the factors that courts consider when determining child support in a shared parenting arrangement.

As a family law lawyer in private practice, I know that one of the most contentious issues faced by separating parents is whether the children will spend approximately equal time with each parent (i.e. shared parenting) or whether they will live primarily with one parent. Most parents have very strong views on the subject.  When those views conflict with those of the other parent, their legal dispute will often end up before the court.

In Canada, there is no presumption in favour of shared parenting.  In 2014, Parliament defeated a bill to introduce such a presumption.  The bill would have amended the Divorce Act to require judges to start from the premise that children should have equal time with their parents unless giving one parent a greater share could demonstrably enhance the best interests of the children. One of the proponents of that bill, Toronto lawyer Brian Ludmer, was recently quoted in the media as saying that it may be time to revisit that issue given the new federal government.

For now, however, a court considering whether to order a shared parenting arrangement must focus on the best interests of the particular child or children involved.  This is the same test that is applied in any parenting decision, and is codified in the Divorce Act.  But how does the court answer that question?  The Divorce Act does not expand on the test.  Instead, courts look to the common law, or the decisions of judges in the courts of our province and around the country.

Here are some factors that the courts will consider (taken from the decision of Associate Chief Justice Lawrence O’Neil in Murphy v. Hancock, 2011 NSSC 197):

1. How close do the two parents live to each other. The closer the better.
2. The availability of each parent to the child on a daily basis, and the availability of step-parents. Also, how the shared parenting arrangement would impact on the children’s relationship with the extended family.
3. Motivation and capability of each parent.
4. Whether shared parenting would reduce transitions between households. This is particularly important if transitions cause conflict.
5. Whether the schedule can be structured in such a way as to eliminate extended periods of time without contact with one parent, such as a mid-week visit or contact with the other parent.
6. Whether shared parenting could provide parents with the opportunity to be more involved in decisions relating to health, education and recreation.
7. Willingness of the parents to assume the additional responsibilities of shared parenting.
8. Employment and career benefits that may accrue to one or both of the parents as a result of more equal sharing of parenting.
9. Whether improvements in the standard of living in either or both households may occur as a consequence of shared parenting.
10. Willingness of the parents to seek professional advice on shared parenting.
11. Effect of shared parenting on the conflict between the parents.
12. An assessment of the parenting styles of the parents.

Anecdotally, I have heard many family lawyers and some judges remark that shared parenting decisions are much more common now than they were 10 years ago.  It remains to be seen whether Parliament will revisit the issue of a presumption towards shared parenting.  For now, factors such as those above will continue to be considered, as courts decide on a case-by-case basis whether shared parenting is the best arrangement for the particular child or children involved.

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