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News and Views — Epstein's This Week in Family Law

Shared Parenting

By: Philip Epstein

Parsons v. Parsons, 2014 CarswellAlta 1720 (Alta. Q.B.): What looks like an ordinary custody dispute and a claim for shared parenting takes an odd twist in this case. This decision by Justice Little of the Court of Queen's Bench of Alberta deals with the father's application for shared parenting of a child who is one year old. The parties were married a scant 18 months. Both parties work full time as pharmacists.

The father argues that the child would benefit from having as much contact with both parents as possible. He accepts that the mother is a capable and loving mother. She argues that contact with both parents is important, but equal time is not consistent with the best interests of the child.

Justice Little reviewed some cases where the Court ordered equal parenting with respect to very young children. See for example, Botticelli v. Botticelli, 74 R.F.L. (6th) 367 (Alta. Q.B.) (2-year-old), Eberle v. Pascoe, 2009 CarswellAlta 303 (Alta. Q.B.) (2-year-old), but see Richter v. Richter, 20 R.F.L. (6th) 396 (Alta. C.A.) where the Alberta Court of Appeal found the shared parenting of a two-year-old not to be ordered where the parents were in substantial conflict with another.
The parties already have a consent order with the child spending considerably more time with the mother than the father. The father is proposing a change to having an eight-day schedule with parents alternating three days, two days, and three days.

It appears that counsel for the mother put in some parent attachment theory written evidence by Bill Eddy, but Justice Little noted that he was in no position to assess his credentials nor review the research he cites. For what it is worth, Mr. Eddy notes that for very young children, "greater stability in location is required, but even for very young children, it is their best interests that govern, not any other overriding principles." Justice Little states his position thus:

I favour a 50/50 split in cases where both parents are loving and capable, and for older children I have found a week on with a week off to be appropriate, or some other schedule defined by one or both of the party's work schedule. In this case, I would not go a week on and a week off because I believe that that is too long for the child not to see the other parent, and I would like to minimize hand overs for short periods, i.e. if we were to go with a week on and week off then each parent should have time mid-week which may be disruptive for Jacob.

He goes on to favour the regime proposed by the father namely three days, two days and three days alternating between parents. He says that these are short enough periods that Jacob will not be detrimentally affected by not seeing the other parent. Over time, this gives both parents equal weekend and holiday time which is good for Jacob who then sees both parents in work and play situations.

This is an application for an interim order. I am surprised that on an interim basis that Justice Little would vary the status quo as there does not appear to be any compelling reason to do so. I thought that the law was relatively settled in Canada that one ought not to disturb the status quo unless there is a compelling reason to do so. That is the reason you leave interim orders in place until trial when the evidence can be fully threshed out. At that point, one or both of the parties could have called expert evidence about attachment theory and how that relates to a one-year-old child. I would have thought that a considerable number of experienced mental health professionals would have significant difficulty with the schedule proposed by the father for a one-year-old child. There perhaps may be cases where it is a sensible arrangement, particularly, if there was heavy involvement by both parents up to the time of separation, and the child has no difficulty travelling between two homes. However, the child is in a current schedule, considerably less than 50-50 time, and now it is proposed to have him make a move for overnight every three or two days. Respectfully, if this was going to be the result, this should have been after a full trial where the best interests of this particular child could have been fully canvassed.

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