ABCA Finds Judge Erred in Questioning Father’s Mental Fitness

When deciding on parenting issues such as the allocation of time a child spends with each parent, and who is permitted to make decisions regarding the child’s upbringing, the primary consideration for any court is the best interests of the child. As a general rule, it is assumed it’s in a child’s best interests to spend as much time as they can with each parent unless there are reasons to order otherwise. The reasons may be related to the geographical distance between the parents, the child’s preferences, or to a parent’s ability to provide a safe and welcoming environment for the child, among other issues.

In a recent case, a father sought to vary the existing parenting arrangements with respect to his children, to increase his share of the parenting time. The parents had been reached a deadlock in negotiations, despite working with family psychologists for over a year as part of a court-mandated Practice Note 7 Intervention. When appearing before the judge on the parenting time issue, the judge abstained from making an order pending an evaluation of the father’s fitness to parent and mental fitness, although neither issue had been raised by any party.

What is a Practice Note 7 Intervention?

A Practice Note 7 Intervention is ordered in family court when a judge finds it necessary to appoint a parenting expert to assess and provide an opinion in cases where there are outstanding decisions regarding children in a family dispute, and the families are experiencing significant conflict.

A parenting expert does not provide an opinion or recommendations with respect to the children’s best interests, or potential parenting arrangements. Instead, the expert will provide the court with an assessment of the current situation between the parents and the children in order to aid the court in making a decision. The purpose of the intervention is to identify challenges the family is facing and facilitate a resolution.

Parents and Children met With Parenting Experts for Two Years

In the case at hand, the family had been seeing a parenting expert by direction of the court since 2018. During the intervention, the mother had raised a concern regarding the father’s parenting and lack of boundaries. Further, the children met separately for counselling with a different psychologist for approximately two months.

The parents had been operating under a parenting schedule that saw the children reside primarily with their mother, staying with their father overnight every Wednesday, and on alternate weekends. The father applied to vary the schedule, giving him more time with the children.

The mother filed a cross-application seeking to have the present arrangement affirmed, and prohibiting the father from filing any further applications until the children’s psychologist provided an opinion as to whether a change in arrangements would be in the children’s best interests.

Chambers Judge Raises Question of Father’s Mental Fitness, Criticizes Parents’ Religious Practices

Before hearing any arguments on the applications, the chambers judge began the proceeding by criticizing the father’s fitness as a parent, saying, “I seriously question the premise that both parents are ‘fit, capable, and loving'”. She then went on to make critical statements with respect to the parents’ shared religious beliefs, saying they were the foundation of the father’s attitude about women and marriage. Notably, none of these issues had been raised by either of the court-appointed psychologists who had been working with the family. The judge based her assessment on the information the father had included in his own affidavit evidence.

The chambers judge ultimately determined it was not appropriate to make a determination on the applications without further information, stating:

I am of the view that the fitness of [the father] has never been raised either with professionals or the Court. And, in my view, for me to properly make a determination of whether shared parenting ought to be allowed, I wish that there’d be an answer to my query regarding his fitness to parent on the basis of any health concerns. I am of the view that I would be best assisted by a short psychiatric opinion, but I leave that up to [the father’s lawyer] as counsel for [the father].

Appeals Court Finds Judge Erred in Commenting on Father’s Fitness Without Prompting

The father appealed the chambers judge’s decision. Upon review, the Alberta Court of Appeal noted that the judge’s concerns about the father’s mental fitness or how his religious beliefs would have affected that, appeared to be entirely her own:

Subject to narrow exceptions, chambers judges are expected to confine themselves to the issues raised by the parties, and should not grant relief beyond what is claimed in the applications. As the chambers judge acknowledged, neither the professionals nor the parties had raised issues about the appellant’s fitness to parent, or his mental health.

While it is possible for parents to disagree, or have different parenting styles, this does not necessarily indicate that one or the other is unfit to parent. Given that neither the mother, nor the court-appointed parenting expert had raised concerns about the father’s fitness on the record, it was a reviewable error for the judge to raise them herself, and to demand evidence of the father’s fitness before rendering a decision. The decision was set aside and returned for reconsideration.

Contact Mincher Koeman in Calgary with Questions Pertaining to Parenting Disputes

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to parenting plans and child access arrangements following the breakdown of a relationship. Contact our office today by calling us at 403-910-3000 or contact us online.