The parenting arrangements for children post-separation or divorce can take many forms and often evolve over time. Below, we will provide an overview of how parenting plans are determined and the different ways parenting may be structured after a separation. Further, we’ll examine various methods open to parents who may wish to change or amend their current parenting situation.
Before discussing common types of parenting arrangements, it is important to be aware of the proper terminology.
When people speak about parenting children after a separation, they often use terms like “shared custody” or “full custody” when discussing where the children will live. “Custody” was once the legal term for the ability of a parent to exercise control over the major decisions about a child, such as their education or medical care. The term “access” was used to discuss where a child lived and how much time they spent with each parent.
However, in recent years, the legislation in Canada has moved away from these terms altogether to reduce the perception that parents should feel they are in competition over parenting arrangements. In 2021, the federal Divorce Act was amended to replace the term “custody” with “decision-making responsibility” and the word “access” with “parenting time”. This was done as part of the larger effort to shift the focus in all parenting matters to the child’s best interests, which is now the sole factor a court considers in any parenting dispute.
As mentioned above, decision-making responsibility refers to the level of authority a parent or guardian has over significant decisions in a child’s life, such as medical care, religious upbringing, and education. Courts will often strive to allow parents to share this responsibility unless it is not in the child’s best interests. In a shared scenario, parents would be expected to consult with one another before making major decisions for their child.
In some cases, a court may split this responsibility between the parents based on certain areas of a child’s life. For example, one parent may be granted sole discretion to make medical or educational decisions for a child, especially if the parents are in opposition on a specific issue. This has increasingly been a factor with respect to childhood vaccinations, especially since the start of the COVID-19 pandemic. One parent can also be given sole decision-making responsibility for their child in all respects, even if the child spends time with both parents. This would commonly be reserved for situations where the parents cannot effectively communicate with one another.
As mentioned above, what we once referred to as “access,” or the time a child spends with each parent, we now call parenting time. As with decision-making responsibly, courts will generally aim for maximum contact with each parent whenever possible. In most cases, this will result in an order for shared parenting time, where a child spends close to equal time with each parent.
However, shared parenting time may not always be possible or in the child’s best interests. If a court determines that it’s in the child’s best interests to spend most of their time with one parent, the other parent may be limited to shorter or less frequent visits. In cases where it has been demonstrated that one parent cannot be trusted to spend time with the child one-on-one, the court may require that parent’s access be supervised to ensure the child is kept safe while still allowing them to maintain a connection with their parent.
It is common for family dynamics and situations to change over time or for the practical needs of a child to evolve as they age. As such, it may become necessary for parents to consider amending an existing parenting order or even seeking an order to terminate one parent’s parental rights altogether.
If parents have set their parenting plan through negotiation or mediation, they may agree to change the arrangement as they see fit. Sometimes the practical aspects of a parenting plan will slowly evolve without formal discussion, or it may become necessary to re-negotiate the terms of the arrangement in the case of a sudden change.
For example, one parent may be required to move for work, necessitating a change in parental access due to geographical distance. If the parents are unable to come to terms on their own, they may choose to enter into mediation or negotiation with the assistance of family lawyers to resolving any hurdles in setting a new plan in motion.
In cases where the parents cannot agree on changes or one parent requests a change to an existing court order, the parties need to bring an application before a judge.
In some extreme cases, a parent may wish to terminate the other parent’s rights completely. However, courts are reluctant to sever a child’s access to a parent in all but the most extreme situations. This option will generally be reserved for circumstances in which the other parent has abandoned their relationship with the child or if they pose a threat to the child due to violent, abusive, or neglectful behaviour.
In any case, where a parent wishes to make a significant change to an existing parenting plan or order, it is helpful to speak with an experienced family lawyer. A qualified lawyer can help a parent review their legal options and the likelihood of success before proceeding to court.
At Mincher Koeman, we practice family law exclusively. Our divorce lawyers have represented clients in all matters regarding decision-making ability and parenting time, ranging from amicable cases to high-conflict disputes. We will provide each client with a complete picture of their rights and obligations concerning the care of their child or children and provide experienced advocacy in court. We have built our practice to ensure that each client receives first-rate client service and will always be sure to steer clients towards the most efficient resolution of their matter, keeping costs down whenever possible. To discuss your matter with a family lawyer, contact our firm by calling us at 403-910-3000 or by contacting us online.
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