The Divorce Act of Canada has one legal test when it comes to decisions over children and their care – what is in the best interests of the children? This principle is the mandatory and legislated basis of any decision made by a judge when deciding custody, access, parenting, or anything else related to children of separated families. The equivalent legislation for the provinces, including British Columbia (the Family Law Act of BC) and Alberta (the Family Law Act of Alberta) mirror this principle.
Shared parenting is a hot topic these days, and is often sought by parents upon separation. Essentially, shared parenting means that both parents have the physical care of the children for approximately equal amounts of time. While this is becoming more common, it is not a legal right or entitlement. To put it another way, a parent does not have the right to have equal time with his or her children. If parents cannot reach an agreement on what parenting schedule is best for their children, a judge will make that decision based on what he or she decides is best for the children.
There are many examples where judges decide that shared parenting is not best for children. A very recent example comes from the Alberta Court of Appeal on May 24, 2014 in the reported case of Rensonnet v. Uttle (2014 ABCA 304 if you want to look it up). The Court of Appeal confirmed that when separated parents are in substantial conflict, shared parenting is not appropriate or best for children.
The best way to achieve a shared parenting plan remains taking a reasonable and amicable approach to parenting upon separation, and keeping the decisions for your children out of the courtroom.
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